IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1096 of 2009 Uma Shankar Prasad s/o Late Sitaram Sah resident of Mohalla Aghoria Bazar Oriental Club PS Kazi Mohammadpur PO Ramna Dist.Muzaffarpur Objector-Appellant- Petitioner Versus Sita Devi w/o Shivji resident of village Maniari PS Kurhani Dist.Muzaffarpur Presently residing at Mohalla Kalihari Road PO and PS Mithanpura Muzaffarpur Dist. Muzaffarpur Decree Holder-Respondent-Opposite Party ------ For the petitioner: Mr Shashi Shekhar Dwivedi, Sr. Advocate Mr Ram Kishun Prasad, Advocate For the opposite party: Mr Sidheshwari Pd. Singh , Sr. Advocate Mr J.S. Arora, Advocate ------------- 14 18.12.2009 Heard learned counsel for the petitioner and learned counsel for opposite party. 2. This civil revision has been filed by the sole objector- appellant-petitioner challenging order dated 04.06.2009 by which the learned District Judge, Muzaffarpur dismissed Miscellaneous Appeal no. 10 of 2008 and affirmed order dated 23.07.2008 by which the learned Execution Munsif, Muzaffarpur rejected Miscellaneous case no. 2 of 1998 filed by the petitioner under Order XXI Rule 97 of the Code of Civil Procedure. 3. The aforesaid miscellaneous case was filed by the petitioner for determination of the question raised by him with regard to title and possession over the suit land. The said miscellaneous case was filed in Execution case no.1 of 1995 which was initiated at the instance of sole decree holder-respondent-opposite party for execution of the decree dated 28.07.1994 for eviction of the defendant (not party in the miscellaneous case) passed by the learned Munsif, Muzaffarpur in Eviction suit no. 106 of 1983. - 2 - 4. The matter has chequered history as admittedly the suit property measuring 11 1/2 dhurs was purchased by Bhajju Sah from the original owner by registered sale deed dated 01.04.1940 but subsequently, in the year 1965 he died leaving behind a widow (Rameshwari Devi), a son (Jagdish Sah) and three daughters ( Kailash, Radha and Sharda). 5. It transpires that by registered sale deed dated 13.02. 1967 Jagdish Sah sold entire land 11 1/ 2 dhurs to one Siya Devi who inducted Ganesh Sah (defendant) as a tenant in the suit premises on monthly rent. Subsequently by registered deed of gift dated 28.12.1982 the said Siya Devi transferred the suit land to her daughter Sita Devi (opposite party) and the tenant paid rent to her. However, in the year 1983 the said Sita Devi (opposite party) filed an Eviction suit no. 106 of 1983 against the said Ganesh Sah for his eviction on the ground of her personal necessity as well as default in payment of rent by the said defendant. 6. It transpires that the petitioner after learning about the aforesaid eviction suit filed an intervention application dated 06.04.1985 under the provision of Order I Rule 10 of the Code of Civil Procedure claiming that Bhajju Sah had left behind five heirs each of them having 1/5th share and hence he had purchased 1/5th share of Rameshwari as well as 1/5th share Radha vide registered deed dated 26.03.1984 totally measuring 4 1/2 dhurs. The said application of the petitioner was rejected by the trial court vide order dated 30.05.1985, which was challenged by the petitioner in C.R. no. 1378 of 1985 which was subsequently dismissed as withdrawn on - 3 - 02.12.1987 with liberty to file a suit before an appropriate court raising his claim. 7. It transpires that in view of the aforesaid order of the High Court, the petitioner filed Partition Suit no. 72 of 1988 for partition of his 4 1/2 dhurs land from the total land measuring 11 1/2 dhurs. The said partition suit was dismissed for default by the trial court but neither any prayer for its restoration was made nor the said order was challenged before any authority. 8. However, the aforesaid eviction suit continued against the said tenant Ganesh Sah and was finally decreed on contest by the learned Munsif, Muzaffarpur vide judgment and decree dated 28.07.1994 but the said judgment and decree of the eviction suit was not challenged by anyone. Accordingly, Execution case no. 1 of 1995 was filed by opposite party for execution of the said decree of eviction whereafter an order of delivery of possession was also issued. 9. It tranispires that the petitioner filed Miscellaneous case no.2 of 1998 in the said execution case under Order XXI Rule 97 of the Code of Civil Procedure claiming that he had 2/5th share in the suit premises and was in possession thereof in that capacity and hence he can not be ousted unless the question of title and possession is determined by that court. 10. Similarly, Miscellaneous case no. 3 of 1998 was filed by the decree holder-opposite party in the said execution case under Order XXI Rule 97 of the Code of Civil Procedure for removal of resistance or obstruction to his possession which has to be given to him in view of the decree of eviction passed by the learned court - 4 - below. 11. It transpires that both the miscellaneous cases were heard together on 23.07.2008 and the learned court below dismissed the Miscellaneous Case no. 2 of 1998 filed by the petitioner and allowed Miscellaneous Case no. 3 of 1998 filed by the opposite party by separate orders. Against the said orders the petitioner filed Miscellaneous Appeal no.10 of 2008 and Miscellaneous Appeal no. 11 of 2008. But both the above mentioned Miscellaneous appeals were dismissed by the learned court of appeal below vide its common order dated 04.06.2009. 12. The orders passed by the learned courts below in Miscellaneous Case no. 2 of 1998 and Miscellaneous Appeal no.10 of 2008 have been challenged in C.R. no. 1096 of 2009 whereas the orders passed by the leaned courts below in Miscellaneous Case no. 3 of 1998 and Miscellaneous Appeal no. 11 of 1998 have been challenged in C.R. no.1097 of 2009. 13. Learned counsel for the petitioner challenges the aforesaid orders of the learned courts below claiming that admittedly the suit property was self acquired property of Bhajju Sah vide sale deed dated 01.04.1940 and the said Bhajju Sah having died in 1965 leaving behind a widow, a son and three daughters each of them having 1/5th share in the suit property, the son had no right or title to sell the entire property measuring 11 1/2 dhurs purchased by his father, hence the sale deed of 1967 by son Jagdish Sah in favour of Siya Devi was not legal, valid and proper whereas the sale deed of 1984 by the widow Rameshwari and a daughter Radha for 1/5th share - 5 - each to the petitioner was legal and valid. Hence he claims that the possession of the petitioner as co-sharer can not be disturbed by the opposite party who has not acquired any valid title over the suit property. In this regard he has relied upon three decisions of the Hon’ble Apex Court in the case of Dhurandhar Prasad Singh vs Jai Prakash University & others reported in AIR 2001 SC 2552 and in the case of Gorakh Nath Dube vs Hari Narain Singh & others reported in AIR 1973 SC 2451 as well as in the case of Jahuri Sah and others vs Dwarika Prasad Jhunjhunwala and others reported in AIR 1967 SC 109. He further submits that these aspects of the matter were completely ignored by the learned courts below while passing their impugned orders which are fit to be set aside. 14. On the other hand, learned counsel for the opposite party submits that her vendor Siya Devi has purchased the entire suit property measuring 11 1/ 2 dhurs from the son of admitted owner by registered sale deed dated 13.02.1967 in which father of the petitioner was one of the witnesses and the said sale deed was never challenged by either any of the alleged heir of Bhajju Sah or anyone else and hence the said Siya Devi acquired full right, title and possession over the suit property which was accepted even by the tenant Ganesh Sah (defendant) who admittedly was paying rent to her. He further submits that in the said circumstance, the opposite party-Sita Devi acquired full right, title and possession of the suit property on the basis of registered deed of gift dated 28.12.1982 executed by her mother Siya Devi whereafter the defendant-tenant Ganesh Sah admittedly paid rent to her. Accordingly, the relationship of landlord and tenant between - 6 - the plaintiff-opposite party-Sita Devi and tenant-defendant (not party to this case) was never challenged by him or any other person. 15. From the arguments on behalf of the parties as well as from the materials on record, it is quite apparent that the defendant- tenant Ganesh Sah was in possession of the suit premises only as a tenant of the plaintiff-opposite party. Furthermore, in paragraph 13 of the civil revision, it has been specifically stated by the petitioner- Uma Shankar Prasad that the said defendant-judgment debtor vacated the suit premises in favour of the petitioner during the pendency of the suit. In the said circumstance, it stands an admitted fact that the petitioner came in possession of the suit premises as the defendant- tenant handed its possession to the petitioner after admitting that he was the tenant of plaintiff-opposite party. It is also not in dispute that the petitioner- Uma Shankar Prasad as well as defendant Ganesh Sah are full brothers. 16. Furthermore the sale deed dated 26.03.1984 said to be in favour of the petitioner by some alleged co-sharer was neither admitted nor was ever verified in the said proceeding nor there was any occasion for the court hearing an eviction suit to consider the same. In the said facts and circumstances, the case laws relied by learned counsel for the petitioner, namely, in case of Dhurandhar Prasad Singh (Supra), in case of Gorakh Nath Dube (Supra) and in case of Jahuri Sah (Supra) are not applicable to the instant matter. 17. In view of the admitted fact that the petitioner was full brother of the defendant-tenant who gave possession of the suit premises to the petitioner during the pendency of the suit, the claim of - 7 - the petitioner under the provision of Order XXI Rule 97 of the Code of Civil Procedure was not at all bona fide, justified or available in law. In the said circumstance the execution case has to proceed against the person who is in possession of the suit premises admittedly at the instance of the defendant-judgment debtor-tenant without any further delay as the execution case is pending since about one and half decades. 18. However, admittedly, the petitioner has filed Partition suit no. 399 of 2006 in view of dismissal due to default of his earlier Partition suit no. 72 of 1988 which was filed in compliance of order of this court dated 02.12.1987 passed in C.R. No. 1378 of 1985. In the said case, the opposite party is a defendant and it has been filed for partition of petitioner’s 2/5th share in the suit property on the basis of registered sale deed dated 26.03.1984. The said suit has to be considered and decided on its own merit without being influenced by any observation/direction made in this order. 19. In the aforesaid circumstances, this Court does not find any illegality in the impugned order of the learned court below dated 04.06.2009 nor does it find any jurisdictional error therein. Accordingly, this civil revision is dismissed. shahid (S.N. Hussain, J)