IN THE HIGH COURT OF JUDICATURE AT PATNA C. REV. No.247 of 2009 ----------- Sachidanand Mishra, son of late Ramashish Mishra, resident of Mohalla Jhauganj, Patna City, P.S. Chowk, P.O. Jhauganj, District Patna. ………Petitioner-Petitioner. Versus Smt. Bimla Devi Saraf wife of Shri Parasnath Saraf, resident of Mohalla Jhauganj, Patna City, P.S. Chowk, P.O. Jhauganj, District Patna. …….Opposite Partyu-Opposite Party. -------- For the Petitioner : M/s S.S. Dwivedi, Sr. Advocate and R.S. Dwivedi, Advocate. For the Opp. Party : M/s Triloki Nath Maitin, Sr. Advocate and Sudhir Kumar Bijpuria,Advocate. -------- 04/ 06.11.2009 Heard learned counsel for the petitioner and learned counsel for the opposite party. 2. This civil review petition has been filed on behalf of the petitioner-petitioner challenging order dated 10.08.2009, by which this Court dismissed Civil Revision No. 1121 of 2009. 3. The said civil revision was filed by the petitioner-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. 4. The aforesaid miscellaneous case was filed by the petitioner in Execution Case No. 05 of 2006 for adjudication of the questions of right, title and possession of the suit property 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 2 in possession of the suit property in his own right. 5. The aforesaid eviction suit was filed by the opposite party for eviction of the defendant ( not a party to the civil revision or to the civil review) from one shop room in a big house on the ground of bona fide personal requirement of the plaintiff-opposite party. The learned trial court decreed the said suit on 26.12.2005 and while deciding the suit it found that the said defendant was tenant of the plaintiff-opposite party, who had bona fide personal requirement of the said shop room, in which he had inducted the defendant as a tenant. The said judgment and decree of the trial court was not challenged before any higher authority and, thus, it attained finality. 6. The plaintiff-opposite party filed Execution Case No. 05 of 2006 for execution of the said decree of eviction. In the said execution case, Misc. Case No. 08 of 2006, as mentioned above, was filed by the petitioner under Order XXI Rule 97 of the Code, which was rejected by the executing court and the said order was confirmed by this Court vide order dated 10.08.2009 passed in Civil Revision No. 1121 of 2009, which has been sought to be reviewed in the instant civil review petition. 7. By the said order, this Court had considered each and every point raised by the petitioner and decided the same in accordance with the provisions of law after coming to the following conclusions:- “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 3 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 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 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. 4 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 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.” 8. In the aforesaid facts and circumstances, this Court does not find any error apparent on the face of the record nor does it find any fresh material to take a different view. Accordingly, this civil review petition is dismissed. MPS/ ( S. N. Hussain, J.)