IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.433 of 2009 1. BHOLI MANDAL, 2. Bhairo Mandal, 3. Shankar Mandal, 4. Kishan Mandal and 5. Shambhu Mandal, all sons of Late Gulabi Mandal, all are residents of Mohalla Murgidih under Banka Municipality, P.O. & P.S. Banka, Distt. – Banka ….. Defendants – Judgment Debtor - Petitioners Versus GIRISH MANDAL, son of Late Chandar Mandal, resident of Mohalla –Murgidih under Ward No. 8, P.O. & P.S. – Banka, Distt. – Banka ………………..……. Plaintiff-Decree Holder – Opp. Party. ----------- For the Petitioners:- Mr. Sanjay Kumar Ghosarvey, Advocate. ----------- P R E S E N T THE HON’BLE JUSTICE DR. RAVI RANJAN O R D E R 4. 15.04.2009. Heard learned counsel for the petitioners. The defendants – judgment debtors – petitioners are aggrieved by the order dated 20.02.2009 passed by the Sub Judge I, Banka in Title Execution Case No. 7 of 2007, whereby the petition dated 18.11.2008 filed by the defendants under Section 47 of the Code of Civil Procedure has been rejected. The original suit was filed by the plaintiffs for grant of relief to hold and declare that the plaintiffs are absolute owner of the suit land and the defendants are renter of the plaintiffs and have defaulted in payment of 2 rent and also to hold and declare that the entry in Survey Khata no. of Banka Municipality standing in the name of Gulabi Mandal is null and void. The suit was decreed in part. Title of the plaintiffs was declared, however, no relationship of landlord and tenant between the plaintiff and the defendant was found. It was also declared that the entries in the records of the Municipality concerned in favour of the defendants are also illegal, and the plaintiffs were found to be entitled to eject the defendants from the suit property. However, the court found multiplicity in relief claimed by the plaintiffs. Since the plaintiffs have proceeded with the suit after filing declaratory court fees only but have also claimed relief of ejectment of defendants from the suit property, it had held that the decree of ejectment will be subject to paying of ad valorem court fee of the plaintiff. The defendants preferred Title Appeal No. 54/1998 against the aforesaid decree, which was also dismissed. It has been stated in this revision application that against the judgment and decree of dismissal passed in the aforesaid Title Appeal, the defendants filed Second Appeal No. 272/2004 which was dismissed for 3 default and an application for restoration of the aforesaid Second Appeal was also dismissed. It has been further stated that the case has been assigned to a learned counsel of the Supreme Court for filing a Special Leave Petition. Learned counsel for the petitioners submits that the decree was not executable for the reason that the trial court could not have entertained a composite suit for declaration of title as well as ejectment of the defendant as it did not have such jurisdiction. Secondly, it was contended that the decree is with respect to 9 decimals of land but 4 decimals of vacant land is in possession of one Ilha Devi, who was not a party to the suit, therefore, the decree is not executable and, as such, the execution case was liable to be dismissed. In support of his submission learned counsel for the petitioners placed reliance upon a decision of a learned Single Judge of the Gujarat High Court rendered in Marwadi Punamji Motiji Vrs. Mohamad Siddique Musabhai Shaikh & ors, reported in AIR 1993 Gujarat 168. Relying upon the aforesaid decision, learned counsel for the petitioners contended that in a composite 4 suit invoking two different jurisdictions of the Court cannot be entertained by the court and, thus, the decree passed by the trial court was without jurisdiction. However, the aforesaid decision is clearly distinguishable on the facts and is not applicable in this case. In the aforesaid decision the plaintiff filed a suit claiming possession of the premises on the ground that the defendant is a trespasser. He also claimed possession on other grounds available under Rents Act, 1947. It has been held therein that the court below passed the decree for the aforesaid two prayers, both under two different compartments, namely, one under the Bombay Rents Act, 1947 and the other under the General Law of the land, for which the court which passed the decree did not have any jurisdiction. Thus, the decree was found without jurisdiction and, thus, it was held that the decree which was without jurisdiction was not executable by the executing court. In the case in hands, the petitioner could not show that the original court, which had passed the decree, did not have jurisdiction to pass the same under General Law of the land or it was a Court of Small 5 Causes. It has also to be kept in mind that the relationship of landlord and tenant could not be established by the plaintiff and, thus, the court below held that there is no such relationship. The decree is not for the ejectment of a tenant. Further, the appellate court has also found the suit to be maintainable and has upheld the judgment and decree. Since the petitioners could not establish that the trial court which has passed the decree did not have jurisdiction to entertain a suit under the General Law as well as the Rents Act, the petitioner’s case is bound to fail. So far the second submission of the petitioner is concerned, it is contended that 4 decimals of land out of total 9 decimals is in possession of one Ilha Devi, who was not a party to the suit, therefore, the decree is not maintainable. However, aforesaid Ilha Devi has not come before the executing court to raise such issue. The petitioners were free to raise this issue before the trial court as well as the appellate court. Thus, the finding of the executing court that the petition under Section 47 of the Code of Civil Procedure has been filed by the judgment debtors only as a last weapon to be used to 6 obstruct execution seems to be correct. In view of the aforesaid, this Court does not find any jurisdictional error in the impugned order dated 20.02.2009 warranting interference by this Court in its discretionary revisional jurisdiction. As a result, this Civil Revision fails and is dismissed. dk ( Dr. Ravi Ranjan, J. )