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2001 DIGILAW 1051 (PAT)

Kailash Prasad Yadav v. Arjun Prasad Yadav

2001-11-26

P.N.YADAV

body2001
Judgment P.N.Yadav, J. 1. The instant revision is directed against the order dated 20-1-2001, passed in title (Eviction Suit No. 34 of 1999) by Munsif, Patna City, Patna, whereby and whereunder he rejected the application u/s. 10 read with sec. 151 of the Code of Civil Procedure filed by the petitioner praying therein for stayal of the suit till disposal of title Suit No. 35 of 1997. 2. The relevant facts necessary for disposal of the present revision application may be stated in brief. The opposite party-plaintiff purchased the shop premises in dispute through registered sale-deed executed by Laxman Prasad Kesri on 27-7-1997. The petitioner-defendant had, according to the plaintiff, been tenant in respect of the premises. The plaintiff brought the suit referred to above for rejectment of the defendant-petitioner therefrom in accordance with the provisions of Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982. The defendant-petitioner denied that he had been tenant of the plaintiff-opposite party. He setup his case that his father and after his death he has been tenant in respect of the premises belonging to the father of Laxman Prasad Kesri and on 27-12-1975 a registered deed of agreement was executed between the father of Laxman Prasad Kesri and the father of the petitioner in terms of which the letter was authorised to carry out repair of the shop premises and the and the cost incurred on repair was to be adjusted against the rent payable for the premises and if the landlord was to sell the premises, it would be sold to the father of the petitioner and after the death of father of the petitioner Ram Babu Yadav and Laxman Prasad Kesri executed an agreement to sell the premises on 27-7-1997 and in terms of agreement the sale-deed was to be executed in favour of the petitioner. 3. The petitioner-defendant brought title Suit No. 35 of 1997 against laxman Prasad Kesri in the Court of Munsif Patna City for declaration that he has every right to run his business in the suit premises and he has right to purchase the premises in question and also for issuance of injunction restraining the said Laxman Prasad Kesri from getting the premises vacated by him. Subsequently, the petitioner filed title Suit No. 34 of 1999 against Laxman Prasad Kesri for specific performance of contract in respect of the suit premises on the basis of the agreement dated 27-7-1997 referred to above which is pending in the Court of Sub-Judge, III, Patna City. 4. The petitioner by making an application in the Court of Munsif, Patna City, contended that the parties and the subject-matter of both the suits, i.e. title Suit No. 35 of 1997 and tile, Suit No. 34 of 1999 were the same and the decision of title Suit No. 35 of 1997 would operate as res-judicata in title Suit No. 34 of 1999 and as such, it was just and proper to stay the proceeding of title Suit No. 34 of 1999 till disposal of title Suit No. 35 of 1997. 5. The learned Munsif after hearing both the parties rejected the petitioners prayer for staying title Suit No. 34 of 1999 till disposal of title Suit No. 35 of 1997 vide the impugned order. 6. The suit is based on agreement to sell. It may be observed that contract of sale does not confer any right and title on the person in favour of whom the property has been agreed to be sold and, as such, the petitioner cannot claim right, title interest and possession over the premises in question on the basis of agreement, referred to above. 7. The opposite party claimed to have become owner and landlord of the tenant premises by virtue of its purchase vide the sale-deed dated 27-7-1997 and the instant suit, i.e. title Suit No. 34 of 1999 was filed by him for eviction of the petitioner from the premises in question on the ground of personal necessity. 8. It title Suit No. 35 of 1997 is to be considered the geruineres and bona fide or otherwise of the agreement dated 27-9-1975 executed by the father of Laxman Prasad Kesri and the agreement dated 27-7-1997 entered into by Laxman Prasad Kesri and the petitioner. In title Suit No. 34 of 1999, the matter in issue to be decided is whether relationship of landlord and tenant existed between the opposite party and the petitioner and the former is entitled to get a decree of eviction against the latter. In title Suit No. 34 of 1999, the matter in issue to be decided is whether relationship of landlord and tenant existed between the opposite party and the petitioner and the former is entitled to get a decree of eviction against the latter. The matter directly and substantially in issue in title Suit No. 33 of 1997 is not the same or even identical to that involved for adjudication in title Suit No. 34 of 1999 and as such, the judgment and decree passed in the former suit will not operate as res-judicata in the latter suit. The learned Court below also observed that it was not clear whether the subject-matter of dispute was the same in both the suits for, no description of the disputed property was given in the plaint of title Suit No. 35 of 1997 and, as such, the pre-requisite conditions for stayal of the instant suit till disposal of title Suit No. 35 of 1997 were not fulfield. Making such observation the learned Court below rejected the petitioners prayer for stayal of the instant suit. 9. In the case of Ram Mohan Modi alias Ram Tahal Chauresiya V/s. Ratan Lai alias Ganesh Shankar Vidyarthi and Ors. 1988 PLJR 950, it has been held that in terms of sec. 109 of the T.P. Act, the transferee-plaintiff comes to possess all the rights of the transferor-lessor with regard to the suit properties transferred during pendency of suit but such transferes-plaintiff cannot be said to have acquired the cause of action which accused to the transferor prior to his assignment to the transferee and, as such, the transferee pendente lite cannot take advantage of the default committed by the tenant to the original owner (transferor) who had filed the suit for eviction in absence of any recital in the sale-deed transferring the arrear of rent also, since the right of the transferee commences with the assignment, he cannot maintain a suit for eviction on ground of default committed prior to the assignment which was not specifically assigned in the deed. The principle of law enuciated by the Court in the case cited at bar while adjudicating upon the matters of dispute and issues involved therein is not relevant for determination of the matter of dispute in the present revision. 10. The principle of law enuciated by the Court in the case cited at bar while adjudicating upon the matters of dispute and issues involved therein is not relevant for determination of the matter of dispute in the present revision. 10. Regard being had to the facts and circumstances set forth above and also keeping in view the fact that the petitioner cannot be said to have acquired right, title and interest over the disputed premises on the basis of the agreement, referred to above, it is to be held that no illegality appears to have been committed by the Court below in exercising the jurisdiction vested in it in making the order impugned. The revision is, accordingly, dismissed.