IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11266 of 2010 1. GHYASUDDIN S/O LATE NASIMUDDIN, R/O SAUDAGARPATTI ROAD, P.O. & P.S. KISHANGANJ, DISTT.- KISHANGANJ 2. MERAJUDDIN, S/O LATE NASIMUDDIN, R/O SAUDAGARPATTI ROAD, P.O. & P.S. KISHANGANJ, DISTT.- KISHANGANJ 3. ASIFUDDIN, S/O LATE NASIMUDDIN, R/O SAUDAGARPATTI ROAD, P.O. & P.S. KISHANGANJ, DISTT.- KISHANGANJ 4. IMAMUDDIN, S/O LATE NASIMUDDIN, R/O SAUDAGARPATTI ROAD, P.O. & P.S. KISHANGANJ, DISTT.- KISHANGANJ 5. CHANDNI, D/O LATE NASIMUDDIN, R/O SAUDAGARPATTI ROAD, P.O. & P.S. KISHANGANJ, DISTT.- KISHANGANJ ……….PETITIONERS. Versus SULTAN ALAM, S/O LATE QUAMRUDDIN, R/O PILKHANA ROAD, CHURIPATTI, P.O. & P.S. KISHANGANJ, DISTT.- KISHANGANJ….RESPONDENT For the petitioners : M/s Abbas Haider, Syed Hussain Majeed and S. Azeem, Advocates. For the respondent :M/s Maqbool Ahmad and Pallavi Thakur, Advocates. ----------- 02/ 03.11.2010 Heard learned counsel for the petitioners and learned counsel for the respondent. 2. This writ petition has been filed by the petitioners challenging order dated 07.05.2010 by which Subordinate Judge-I, Kishanganj disallowed the application of the defendants-petitioners for restraining the plaintiff-respondent from withdrawing the rent deposited by the defendants till the disposal of the suit bearing E.S. No.01 of 2007. 3. The aforesaid suit was filed by the sole plaintiff- respondent for eviction of the defendants-petitioners from the suit premises on the ground of default in payment of rent. The said suit was contested by the defendants-petitioners accepting that earlier - 2 - they were tenants of the plaintiff-respondent but subsequently their position changed due to agreement for sale dated 20.03.2007 (Annexure-1) between the plaintiff and Amiruddin son of Alauddin with respect to the suit property and hence they did not remain tenants and were not obliged to pay any rent to the plaintiff. 4. During pendency of the suit the plaintiff filed an application under section 15 of the Bihar Building (Lease, Rent & Eviction) Control Act, 1982 on 08.01.2008, whereafter the court below vide its order dated 11.12.2009 directed the defendants to pay the arrears of rent since March 2007 at the rate of Rs.500.00 per month within fifteen days of the order and also to pay the concurrent rent at the same rate. The said order was complied by the defendants but subsequently on 17.02.2010 they filed an application in the court below for restraining the plaintiff from withdrawing the rent deposited in the court. The said application has been rejected by the court below vide its impugned order dated 07.05.2010. 5. The defendants-petitioners have challenged the said order on the ground that their position was changed and they did not remain tenants after the execution of the agreement for sale dated 20.03.2007 (Annexure1) and hence the plaintiff was not entitled to receive the rent for the said premises until the suit is decided in his favour. Learned counsel for the defendants-petitioners have stated that they had filed Title Suit No.18 of 2007 which is pending before the Subordinate Judge, Kishanganj for specific performance of the aforesaid agreement for sale dated 20.03.2007. 6. Considering the averments made by learned counsel - 3 - for the petitioners and learned counsel for the respondent as well as the materials on record, it is quite apparent that the claim of the defendants is only on the ground of agreement for sale dated 20.03.2007 (Annexure-1) with respect to the suit property, but in the said agreement for sale there is no mention that the possession had been given to the defendants by the plaintiff in part performance of the said agreement rather the said agreement for sale appears to have been executed after filing of the eviction suit. Furthermore legally title cannot transfer merely on the basis of an agreement for sale unless a sale deed is executed either by the plaintiff or through the process of the court which has admittedly not been done till today. However, any order passed in the instant eviction suit either by the court below or by this court cannot affect the title suit filed by the defendants for specific performance of the agreement. 7. In the aforesaid facts and circumstances, this court does not find any illegality in the impugned order of the court below nor does it find any merit in this writ petition, which is accordingly dismissed. Harish (S.N. Hussain, J.)