IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1121 of 2009 Sachidanand Mishra, son of late Ramashish Mishra, resident of Mohalla Jhauganj, Patna City, P.S. Chawk, P.O. Jhauganj, District Patna. …..Applicant- Petitioner. Versus Smt. Bimla Devi Saraf, wife of Sri Parasnath Saraf, resident of Mohalla Jhauganj, Patna City, P.S. Chawk, P.O. Jhauganj, District Patna. ….Opposite Party-Opposite Party ----------- For the Petitioner: M/s S. S. Dwivedi, Sr. Advocate and Ravi Shankar Dwivedi,Advocate. For the Opposite Party : Mr. T. N. Maitin, Sr. Advovate ----------- 06/ 10.08.2009 This Civil Revision has been filed by the applicant-petitioner challenging order dated 14.05.2009 by which the learned Munsif, Patna City rejected his application under Order XXI Rule 97 of the Code of Civil Procedure (hereinafter referred to as `the Code’ for the sake of brevity ) numbered as Misc. Case No. 08 of 2006 at the stage of admission itself. 2. The aforesaid miscellaneous case was filed by the petitioner in Execution Case No. 05 of 2006 for adjudication of the question of right, title and possession on the ground that the decree under execution passed in Eviction Suit No.02 of 1991 was not executable against the petitioner, who was not a party to the suit, but was in possession of the suit property in his own right. 3. This case has a chequered history. It is an admitted fact that the property involved in the aforesaid suit along with other properties belonged to three brothers, namely, Parsuram Das, Hari Das and Awadh Behari Das and after death of Parsuram Das, his sole heir and daughter 2 Bhagwan Dai sold her 1/3rd share by registered sale-deed dated 02.07.1974 in favour of Ramashish Mishra ( father of the petitioner). Subsequently, the heirs of Hari Das and Awadh Behari Das also sold their 2/3rd share vide registered sale-deeds dated 16.06.1988 and 28.07.1988 in favour of the opposite party. 4. In the said circumstances, the opposite party filed Partition Suit No. 685 of 1989 for partition of her 2/3rd share but the father of the petitioner, namely, Ramashish Mishra contested the suit claiming that the property being a building was indivisible. However, the suit was decreed by the trial court vide judgment and decree dated 09.03.1996 holding that the suit property was indivisible but declaring that the opposite party-plaintiff had 2/3rd share, whereas, the father of the petitioner (defendant) had 1/3rd share therein. Hence the defendant (father of the petitioner) was directed to pay Rs.2.25 lacs to the plaintiff as consideration of her 2/3rd share in the suit property within stipulated period, failing which, the plaintiff may pay the value of 1/3rd share to the defendant (father of the petitioner) as consideration for his share in the said property. 5. Against the aforesaid decree in Partition Suit No. 685 of 1989, the plaintiff-opposite party filed First Appeal No. 226 of 1996, which was allowed by this Court on 08.05.2000 holding that the suit property, namely, the house was divisible and she was entitled to get her 2/3rd share partitioned in the said house. This decision is reported in 2001 (1) P.L.J.R. 753. Against the aforesaid judgment of this Court, the petitioner filed S.L.P. No. 17913(Civil) of 2000 which was dismissed by 3 the Hon’ble Supreme Court vide order dated 15.02.2002 (Annexure 2) with observation that if during the execution case it is proved that the building cannot be partitioned, then the parties may raise their objection. However, no such execution case for execution of the decree of this Court dated 08.05.2000 has been filed. 6. It is also admitted by both the sides that the opposite party, who admittedly had 2/3rd share in the house in question, filed E.S. No. 02 of 1991 for eviction of a tenant of one shop room in the house, namely, Sardar Diler Singh on the ground of personal necessity of the opposite party as well as default in payment of rent by the said tenant ( not a party to this civil revision). In the said suit, the tenant appeared and filed his written statement, in paragraph no.13 of which he stated that the opposite party was his landlord and he paid rent to her. However, it transpires that the said tenant filed a petition dated 22.08.1996 (Annexure B), in paragraphno.5 of which he stated that he delivered the possession of the suit shop room to the petitioner, who was co-sharer and on that basis the petitioner filed an application in the eviction suit under Order I Rule 10 of the Code for being added as a party. The said application was rejected by the trial court in 1996, against which the petitioner filed Civil Revision No. 519 of 1996, which was also dismissed by this Court. 7. Finally the aforesaid Eviction Suit no. 02 of 1991 was decreed by the trial court vide judgment and decree dated 26.12.2005, but it was never challenged by any one before any court. Thereafter, the opposite party, who was plaintiff-decree holder, filed Execution Case No. 05 of 2006 for execution of the eviction decree and for delivery of 4 possession in her favour. However, in the said execution case the petitioner appeared and filed Misc. Case No. 08 of 2006 under the provision of Order XXI Rule 97 of the Code giving the above mentioned details and stating that the said eviction decree cannot be executed against the petitioner, who was in possession as co-sharer. The said miscellaneous case has been dismissed by the learned court below vide its impugned order dated 14.05.2009. 8. Learned counsel for the petitioner has challenged the said order on the ground that it was passed by the learned court below on merit at the stage of admission without any evidence etc. It was also claimed that admittedly the petitioner is the co-owner and any such order is violative of the order of the Hon’ble Apex Court dated 15.02.2002 passed in S.L.P. (Civil) No.17193 of 2000 (Annexure 2), specially the observation given therein. He has also submitted that the executing court has passed the impugned order wrongly assuming that since possession was given to the petitioner by the tenant, the petitioner was in possession in the capacity of tenant. Lastly it is claimed on behalf of the petitioner that the final decree proceeding being in progress, Execution Case No. 05 of 2006 should not have continued. 9. On the other hand, learned counsel for the opposite party has stated that the tenant had admitted in the eviction suit that opposite party was his landlord and only the suit shop room, which is situated in a small portion of the entire house, was in possession of the opposite party through her tenant, whereas, the entire remaining portion of the said house has already been in possession of the petitioner, who has now 5 forcibly taken possession of the suit shop room also, as a result of which now the opposite party is not in possession of even an inch of the entire house although she is admittedly owner of 2/3rd share in the house as per the judgment of the High Court in F.A. No. 226 of 1996, which was affirmed by the Hon’ble Supreme Court. 10. Learned counsel for the opposite party has further submitted that the petitioner had not impleaded the tenant (defendant in the eviction suit ) either in the miscellaneous case or in the instant civil revision although the said tenant was the sole defendant in the eviction suit and was also impleaded as opposite party in Execution Case No. 05 of 2006, in which the said miscellaneous case was filed by the petitioner. It was also claimed by learned counsel for the opposite party that 1/3rd share in the house in question was purchased by Ramashish Mishra by registered deed dated 02.07.1974 and after his death it devolved upon his five sons including the petitioner Sachidanand Mishra, but the miscellaneous case as well as the instant civil revision have been filed only by one of the sons of the purchaser, namely, the petitioner. 11. Learned counsel for the opposite party also asserted that the miscellaneous case filed by the petitioner was frivolous as there was nothing to be adjudicated and admittedly the petitioner had only 1/3rd share in the house, whereas, the opposite party had 2/3rd share and the tenant-defendant had specifically pleaded in the eviction suit that the opposite party was his landlady to whom he paid rent and, accordingly, the trial court held that there was relationship of landlord and tenant between the plaintiff and the defendant of the aforesaid eviction suit, out 6 of whom the plaintiff is the opposite party and the defendant has not even been impleaded in the civil revision. Hence, he claimed that the civil revision had no merit and was fit to be dismissed. 12. Considering the arguments made on behalf of the parties as well as the materials on record including the impugned order, it is quite apparent that admittedly the shop room, which is subject matter of the eviction suit, is a small portion of the house in question, in which the petitioner has 1/3rd share and the opposite party has 2/3rd share as per the decree of this Court dated 08.05.2000 passed in First Appeal No. 226 of 1996, which was affirmed by the Hon’ble Apex Court and in accordance with the aforesaid preliminary decree a proceeding for preparation of final decree is under progress in the learned court below. Thus, it is apparent that although the shares of the parties have been decided but the specific portions for both the parties have not been carved out by way of takhtabandi and final decree as yet and till the date every co-sharer has his respective share in every inch of the suit property. 13. It is also not disputed that except the shop room in question the petitioner was in possession of the entire house in question although he had only 1/3rd share in the said house. So far the shop in question is concerned, it was the subject matter of Eviction Suit No.02 of 1991, in which the defendant-tenant had specifically admitted that he was the tenant of the plaintiff-opposite party and was paying rent to her. Accordingly, the said eviction suit was decreed holding that there was relationship of landlord and tenant between the parties, namely, the plaintiff and the defendant of the suit. On the other hand, the petitioner 7 had nowhere stated that he had inducted the said defendant as a tenant in the suit shop room nor there is any material that he was ever in possession of the said shop room prior to the said eviction suit. 14. In the said circumstances, it is quite obvious that the petitioner during pendency of the eviction suit some how managed to take possession of the suit shop from the tenant either by force or by stealth. It is also apparent that due to the said act of the petitioner his petition under Order I Rule 10 of the Code filed in the eviction suit as well as his civil revision bearing C.R. No. 519 of 1996 were dismissed The material on record also shows that the tenant had admitted that he was inducted as tenant by the opposite party to whom he was paying rent and hence the learned trial court while deciding the eviction suit, had rightly found that there was relationship of landlord and tenant between the parties. The said judgment and decree of the eviction suit was not challenged before any higher authority and, thus, it has attained finality. 15. Furthermore admittedly the opposite party has 2/3rd share in the house, but the petitioner, who had only 1/3rd share, was in possession of the entire house except the shop room and hence the opposite party was quite justified in seeking eviction of her tenant from the shop room on the ground of her bona fide personal requirement, which was rightly affirmed by the learned trial court as the law is well- settled that a co-sharer is legally entitled to file a suit for eviction of the tenant on such ground. Reference in this regard may be made to the decisions of the Hon’ble Apex Court in case of Sri Ram Pasricha vs. Jagannath & Ors., reported in A.I.R. 1976 S.C. 2335 and also in case of 8 Pal Singh vs. Sunder Singh, reported in A.I.R. 1989 S.C. 758 (paragraph 10). 16. From the facts and materials of this case, it is also apparent that admittedly the petitioner is a small co-sharer but he was definitely not the landlord of the shop-room and hence he cannot be held to be legally justified in taking possession of the suit shop from the tenant having full knowledge of the pendency of the eviction suit filed by the opposite party against the tenant-defendant specially when the petitioner was already in possession of the entire remaining portion of the house in question. This clearly shows the nefarious activity and mala fide intention of the petitioner, which has to be discouraged at all the stages. 17. In the aforesaid circumstances, no defence or shelter is available to the petitioner behind the plea that he has acquired a small share of some of the co-owners as the law with respect to co-owners is well-settled. In such a case where a house is held by several co-owners, each co-owner has a defined and limited interest in every inch of the suit house but if one co-sharer, specially co-owner of a large share, is in possession of a portion of the joint building, either personally or through a tenant, the other co-sharer cannot legally dispossess the said co-sharer or his tenant. It may be noted that if such a co-sharer is dispossessed by his other co-sharer, the affected co-sharer has a right to recover possession of the property from other co-sharer. 18. The same principle is also applied in cases where one of the co-sharers enjoying exclusive possession of the property, puts in possession another person in any manner such as tenant, the co-sharer 9 in possession keeps his right to recover from that person, who was put in exclusive possession by the said co-sharer and hence execution proceeding has to continue. Reference in this regard may be made to a decision of the Hon’ble Apex Court in case of T. Lakshmipathi vs. P. Nithyananda Reddy, reported in A.I.R. 2003 S.C. 2427 as well as a decision of the Rajasthan High Court in case of Ramanlal vs. Rukmani, reported in A.I.R. 2004 Rajasthan 73. 19. Considering the aforesaid facts and circumstances, it is quite obvious that the entire claim of the petitioner is absolutely frivolous and misconceived and there is no illegality in the impugned order of the learned court below nor the learned court below has committed any error of jurisdiction therein. Accordingly, this civil revision having no merit is dismissed with a direction to the learned executing court to take the execution case bearing Execution Case No. 05 of 2006 to its legal and logical conclusion expeditiously without any further delay. In the above mentioned facts of this case, there shall be no order as to cost. 20. However, the delivery of possession effected in favour of the opposite party in Execution Case No. 05 of 2006 would be subject to the final decree of partition, for which a proceeding is pending in the learned court below in accordance with the decision of the High Court in F.A. No. 226 of 1996. The opposite party will also be at liberty to move before the learned court below before whom the final decree proceeding is pending for allotting the shop in question in his takhta along with other properties for his 2/3rd share, which shall be decided in 10 accordance with law. 21. Furthermore, the learned Subordinate Judge IV, Patna City, before whom the aforesaid final decree proceeding is pending, is directed to expedite it without any further delay and prepare the same preferably within a period of six months from the date of receipt/production of a copy of this order. However, in view of the order of the Hon’ble Supreme Court dated 15.02.2002 passed in S.L.P. (Civil) No. 17913 of 2000 liberty is given to the petitioner to raise his objection before the said court before whom final decree proceeding is pending, claiming that the suit building is not divisible and the said court will decide the said issue in accordance with law considering the entire facts and circumstances of the case as well as the respective claims of the parties and the materials available on record including the above mentioned orders/judgments passed by the various courts in this regard. AFR MPS/ ( S. N. Hussain, J. )