IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.426 of 2010 SHIRI SAH, SON OF LATE CHUNCHUN SAH, RESIDENT OF VILLAGE-RAMPUR, MADHUSUDANPUR, P.S. NATHNAGAR, DISTRICT-BHAGALPUR. ………………………………………………………PETITIONER. Versus 1. BIBI KHATIZA , WIFE OF LATE MD. ISMAIL. 2. MD. KAMAL, SON OF LATE MD. ISRAIL. 3. BIBI BANO, DAUGHTER OF LATE MD. ISRAIL. ALL RESIDENTS OF SUJAGANJ KOTWALI CHOWK, M.P. DWEVEDI ROAD, P.S. KOTWALI, DISTRICT-BHAGALPUR. ……………………………..PLAINTIFFS/OPPOSITE PARTIES. 4. BIJOY KUMAR SAH. 5. AJAY KUMAR SAH. 6. RANJEET KUMAR SAH, ALL SONS OF LATE RAJENDRA PRASAD SAH. 7. MALA DEVI, WIFE OF RAJ KUMAR GUPTA. 8. RANJEETA KUMARI, DAUGHTER OF LATE RAJENDRA PRASAD SAH. 9. MOSTT. SUMITRA DEVI, WIFE OF LATE RAJENDRA PRASAD SAH. ALL RESIDENTS OF MOHALLA-GOLAGHAT, P.S. KOTWALI, DISTRICT-BHAGALPUR. 10. RAMESHWAR PRASAD SAH, SON OF LATE DIPU SAH, RESIDENT OF GOLAGHAT, P.S. KOTWALI, DISTRICT- BHAGALPUR. 11. SUSHILA DEVI, DAUGHTER OF LATE BHIKHAN SAH AND WIFE OF RAM PRASAD SAH, AT PRESENT RESIDENT OF MANASKANA CHOWK, P.S. NATHNAGAR, DISTRICT- BHAGALPUR. ……………………………DEFENDANTS/OPPOSITE PARTIES. 12. GHANSHYAM SAH, SON OF LATE BHIKHAN SAH. 13. BIMAL SAH, SON OF MAHENDRA SAH. 14. RAJESH SAH, SON OF MAHENDRA SAH. 15. RANJIT SAH, SON OF GHANSHYAM SAH. 16. NABIN SAH, SON OF GHANSHYAM SAH. ALL RESIDENTS OF GOLAGHAT, P.S. KOTWALI, DISTRICT-BHAGALPUR. ……………DEFENDANTS 2ND PARTY…OPPOSITE PARTIES. 17. MAHENDRA PD. SAH ALIAS MAHENDRA SAH, SON OF LATE BHIKHAN SAH. 2 18. MANOJ KUMAR SAH, SON OF MAHENDRA PD. SAH. 19. ARBIND SAH, SON OF MAHENDRA SAH. ALL RESIDENTS OF GOLAGHAT, P.S. KOTWALI, DISTRICT-BHAGALPUR. …………DEFENDANTS 2ND PARTY….OPPOSITE PARTIES. ----------- For the Petitioner: M/s. Vivekanand Vivek and Debesh Kumar Poddar, Advocates. --------- 4. 16.7.2010. This Civil Revision is directed against the order dated 27.3.2010 passed by the Munsif-II, Bhagalpur, in Title Execution Case No.9 of 2003, whereby the application filed on behalf of the petitioner under Order XXI Rule 97 of the Code of Civil Procedure (hereinafter referred to as “the Code”) has been dismissed. The Title Eviction Suit No.60 of 1975 was filed by the landlord, namely, Md. Israil (the original plaintiff since deceased) for eviction of his tenant one Bijoy Kumar Sah from the suit premises. The aforesaid suit travelled upto the Apex Court and, ultimately, the Hon’ble Supreme Court had passed the decree for eviction of the tenant within six months as has been noted in the impugned order. The decree was put to execution by filing Title Execution Case No.9 of 2003. The execution case remained pending for several years and on 3 21.11.2009, the petitioner filed an application under Order XXI Rule 97 of the Code claiming that he was inducted as a sub-tenant by the aforesaid tenant Bijoy Kumar Sah in the year 1998 upon the part of the suit premises measuring an area of 5ft. X 4 ft., wherein he was running a cycle repairing shop and he was paying rent to the aforesaid tenant. It has been stated that the plaintiff did not implead him as a party in the concerned eviction suit, however, he was entitled for that since he was in the possession of part of the premises. On the aforesaid account of fact, it has been further stated that by putting aforesaid decree passed in the Title Eviction Suit No.60 of 1975 to execution, the decree holder would not have a right to evict this petitioner as he is in possession of the part of the premises since 1998 itself. I have heard learned counsel for the petitioner and perused the records of the case. Learned counsel for the petitioner submitted that once a petition was filed under Order XXI Rule 97 of the Code, the executing court was duty bound to hear him and after taking evidence to decide the same like a suit as he is not supposed to file a separate suit for this purpose in view of the relevant provisions contained in the Order XXI of the Code. In 4 support of his contention learned counsel for the petitioner has placed reliance upon the certain decisions of the Apex Court. It has been submitted that in Brahmdeo Chaudhary Vs. Rishikesh Prasad Jaiswal and another (AIR 1997 Supreme Court 856), the Supreme Court has observed that once such application is made, the court shall proceed to adjudicate upon the application in accordance with the provisions as contained in the Code therein. It is submitted that in yet another decision in Anwarbi Vs. Pramod D.A. Joshi and others {(2000) 10 Supreme Court Cases 405)} the Supreme Court has held that if a person in possession of immovable property claims entitlement thereto and obstructs execution of decree for possession, such person cannot be dispossessed till his rights are adjudicated in appropriate proceedings. Learned counsel for the petitioner has also placed reliance upon the decision of the Apex Court rendered in N.S.S. Narayana Sarma and others Vs. M/s. Goldstone Exports (P) Ltd. and others (AIR 2002 Supreme Court 251) for that purpose. I do not find any force in the submissions raised on behalf of the petitioner. A copy of the application filed by the petitioner before the court below though had not been appended with this Civil Revision but the same has been 5 produced for perusal of this Court at the time of hearing of this Civil Revision. Learned counsel for the petitioner could not show therefrom that the petitioner claimed independent title upon the suit premises though a bald statement has been to that he has every right, title and interest upon the property leased to the petitioner. From the perusal of the records of the case as well as the impugned order and the submissions made on behalf of the petitioner, it appears that the case of the petitioner is that he had been inducted as sub-tenant by the tenant of the landlord, namely, Bijoy Kumar Sah, in the year 1998 upon the part of the suit premises measuring an area of 5ft. X 4ft. The landlord concerned had brought eviction suit bearing Title Eviction Suit No.60 of 1975 and that suit had travelled upto the Apex Court and the existence of landlord tenant relationship between the landlord and Bijoy Kumar Sah had been found and a decree for eviction was passed. The Apex Court had directed for eviction of the tenant within six months of its order. The petitioner does not even claim that he was inducted on the part of the suit premises by written consent of the landlord. It is well settled that under Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as “the Act”), the sub-lessee of a tenant 6 does not have a right to be impleaded as a party in the suit in absence of contract or agreement or lease between the landlord and the sub-lessee. Once decree for eviction had been passed, on account of possession of the part of the suit premises without written permission of the landlord, a person cannot obstruct execution of such decree. For that purpose, the statutory provision under Section 12 of the Act would be relevant, which is quoted as under: “12. Binding nature of the order of the Court on all persons in occupation of the Building.-Notwithstanding anything contained in any other law, where the interest of tenant in any premises is determined for any reason whatsoever and any order is made by the Court under this Act, for the recovery of possession of such premises, the order shall be binding on all persons who may be in occupation of the premises and vacant possession thereof shall be given to the landlord by evicting all such persons therefrom: Provided that nothing in this section shall apply to any person who has an independent title to such a premises or [x x] to a tenant who has been inducted with the express written permission of the landlord himself personally.” The aforesaid provision had been introduced in order to facilitate the execution of the eviction decree under the provisions of the Act as the same had been the subject matter of undue delay and the decree holder landlord remained 7 deprived of the aforesaid decree for a longer period. Thus, the legislature, in its wisdom, had introduced this provision to curtail the undue delay. The Section concerned itself begins with non- obstante clause, which has been introduced for the purpose to control the setting up of third person or inducting any person by the tenant at the time of delivery of possession. In clear term, it has been expressed in the aforesaid provision that any order made by the Court under the Act for recovery of suit premises shall be binding on all persons who may be in occupation of the premises and vacant possession thereof shall be given to the landlord by evicting all such persons therefrom. A proviso has also been added to the effect that the provisions as contained in this Section shall not apply to any person who has an independent title to such a premises or to a tenant who has been inducted with the express written permission of the landlord himself personally. In Brahmdeo Chaudhary (Supra), the issue before the Hon’ble Supreme Court was that whether the stranger could put obstruction to the delivery of possession by claiming his right, title and interest and whether his claim could only be decided after his dispossession during execution proceeding. The Apex Court has held that it would not be fair 8 to say that a person claiming such independent right, title and interest should wait for his dispossession and thereafter make his claim. It is true that the Supreme Court, thus, had also observed that if the person, who claims independent right, title and interest and was not a judgment debtor, files a petition under Order XXI Rule 97 of the Code, such shall be adjudicated upon in accordance with the provisions contained therein. Similarly, in Anwarbi (Supra), the claim of the appellant was that he was being repeatedly threatened with dispossession. However, his applications had been dismissed on the ground that they were pre-mature. Thus, the Supreme Court has held that if such obstruction is raised during the execution of the decree, the rights of the obstructionist will have to be decided in appropriate proceedings, in accordance with law. In the opinion of this Court, this decision is of no help to the petitioner inasmuch as he had not claimed any independent title. His claim is of possession as a sub-lessee and not as a title holder and the provisions under Section 12 of the Act are staring at his face. That apart, the application filed by the petitioner had not been thrown out but that had been adjudicated and a reasoned order had been passed dismissing 9 his claim. Similarly, in N.S.S. Narayana Sarma and others (Supra), the Supreme Court has held that when any person claiming title to the property in his possession obstructs the attempt by the decree holder to dispossess him from the said property, the executing Court is competent to consider all questions raised by the person offering obstruction against execution of the decree and pass appropriate order which under the provisions of Order XXI Rule 103 of the Code is to be treated as a decree. In the present case, no independent title has been claimed by the petitioner. However, each and every question raised by the petitioner stands answered by the court concerned in the impugned order. In the above view of the matter and on consideration of the materials on record and contention of the petitioner, this Court is of the opinion that the case of the petitioner would be well covered under Section 12 of the Act and the decree holder has a right to get back the vacant possession of the suit premises. If the tenant himself is liable to be evicted then in terms of Section 12 of the Act, the petitioner being a sub-tenant or sub-lessee cannot obstruct 10 such execution of the decree. As a result, I do not find any illegality and impropriety in the impugned order concerned. This Civil Revision is devoid of any merit and, accordingly, is dismissed. I.A. No.5436 of 2010 has been filed for stay of the execution proceedings. Since this Civil Revision has been dismissed as above, the aforesaid interlocutory application also stands dismissed. P.S. (Dr. Ravi Ranjan, J)