IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.866 of 2006 MAHENDRA RAI & ORS Versus HEMANT KUMAR CHAUDHARY ----------- 4. 22.10.2008 Heard counsel for the petitioners and the counsel for the opposite party. The impugned order passed by the District Judge, Samastipur only rejects the prayer of the petitioners, defendants in an eviction suit, for transferring the eviction suit from the court of Munsif, Dalsingsarai to the court of Sub Judge III, Samastipur where a partition suit No. 35/2003 filed by the petitioner is said to be pending between the same parties. Mr. Hare Krishna Kumar, learned counsel appearing on behalf of the petitioners, while referring to paragraphs 11 and 12 of the plaint and paragraphs 21, 22 and 23 of the written statement has seriously contended that as there is a serious and complicated question of title involved in the eviction suit which is also subject matter of a separate partition suit, the ends of justice could have been met, had the District Judge allowed the transfer of eviction suit to the court where the 2 partition suit was pending. He is of the view that when the petitioners tenants have their independent right of title being purchaser of the suit property, the suit for eviction cannot be tried independently and must be heard by the same court where issue of title of the suit property is pending for decision. Mr. Chittaranjan Sinha, learned Senior counsel appearing on behalf of the landlord opposite party, has submitted that the eviction suit was filed in the year 2002 and the partition suit was filed thereafter in the year 2003. The eviction suit is only confined to one ground and is being tried under summary proceeding under section 11 read with Section 14 of the B.B.C. Act. He has also referred to the judgment of this Court in the case of Birmani Pandey @ Birmani Saranacharya vs. Sri Sri 108 Swami Dharnidharcharya & ors., reported in 2004(1) PLJR 476, to contend that the eviction suit has not to await or to be made analogous with the partition suit or any such involving question of title, inasmuch as the suit for eviction under the provisions of 3 B.B.C.Act is under special provision and the same cannot be made subject matter of a general suit for partition or title. Having considered the rival contention at the Bar this Court is of the opinion that the impugned order does not suffer from any jurisdictional error, inasmuch as what has really been decided by the District Judge in the impugned order is that the scope of eviction suit and the partition suit is entirely different. The issue of title even also incidentally can definitely be gone into in the eviction suit and therefore, there would be no prejudice to the petitioners as their written statement filed on 7/12/2005, reference whereof has been made by the learned counsel for the petitioners, can definitely be taken into account for recording an incidental finding of title. It is also well settled that such finding recorded will never come in the way of the petitioners in the suit pertaining to declaration of their title. That being so, this Court has to strictly abide by the sprit of section 24 of the Code of Civil Procedure which lays down 4 the norms and purpose of transfer of the suit from one court to another. The very scope of such transfer is to secure the ends of justice and if that be so, this Court would find that transfer of an eviction suit to a court where a claim for title is pending would be contrary to the sprit of section 24 of the C.P.C. The aforesaid view taken by this Court also finds support from the judgment of this Court in the case of Birmani Pandey (supra). That being so, this Court would not find any reason to interfere with the impugned order and accordingly, this application is dismissed. (Mihir Kumar Jha,J.) Surendra/