JUDGMENT Hon’ble S.U. Khan, J.—Heard learned Counsel for the parties. 2. A double (or triple) storied house situate in Mohalla Khokharan Moradabad (hereinafter referred to as house in question) was admittedly owned by Smt Taiyaba Khatoon who died issueless on 5.9.1945. She left behind her husband Mahboobur Rahman and her brother Mohd Sami as her heirs. These two persons died in 1953. It is alleged that Mohd Sami left behind four sons and two daughters however in respect of matter in dispute only two of the sons of Mohd Sami are relevant i.e. Mohd Rafi and Mohd Razi. The other two sons and two daughters are reported to have migrated to Pakistan. Respondent No. 3 Smt Akhtar Jahan is widow of Mohd Rafi (Mohd Rafi died in 1997). Mohd Rafi claimed that Smt Taiyaba Khatoon had executed a will in his favour in the year 1943. Respondent Nos. 1 and 2 Usman Ali Sabri and Zafar Iqbal purchased the house in question from Smt Akhtar Jahan widow of Mohd Rafi in the year 1999. Late Mohd Rafi let out the first floor of the house in question to one Abdul Rauf in or about 1950. Mohd Rafi let out the ground floor of the house in question in or about 1960 to Hakim Ziaul Islam respondent No. 4 and real brother of the petitioner. The dispute in the instant writ petition relates to the ground floor of the house in question. Mohd Rafi filed OS No. 157 of 1965 against Hakim Ziaul Islam in respect of ground floor. Suit was dismissed, appeal was allowed thereafter Second Appeal No. 204 of 1966 was filed in this High Court, which was allowed in part on 15.2.1970. The suit for recovery of rent was decreed but it was dismissed for eviction on the ground that notice was defective. Thereafter Mohd Rafi again filed a suit for eviction and recovery of rent against Ziaul Islam in respect of ground floor after terminating the tenancy through fresh notice (SCC Suit No. 1613 of 1972). The suit was decreed on 15.5.1976 against which SCC Revision No. 160 of 1976 was filed by Ziaul Islam which was dismissed on 20.8.1982. Against the said judgment and order writ petition was filed in this High Court, which was dismissed on 23.12.1982. The suit was decreed on 15.5.1976 against which SCC Revision No. 160 of 1976 was filed by Ziaul Islam which was dismissed on 20.8.1982. Against the said judgment and order writ petition was filed in this High Court, which was dismissed on 23.12.1982. Meanwhile review application had also been filed by Ziaul Islam in SCC Revision No. 160 of 1976 seeking review of order dated 20.8.1982 through which revision was dismissed. The review petition was allowed on 4.2.1988. Ziaul Islam concealed the fact that his writ petition directed against order sought to be reviewed had been dismissed. Against order dated 4.2.1988 allowing the review petition, a writ petition was filed in this High Court being Writ Petition No. 9426 of 1988 which was allowed on 26.7.2005. 3. Thereafter decree was put in execution in the form of execution case No. 28 of 2005. In the said execution case petitioner Riazul Islam filed application under Order XXI, Rule 97/101 CPC. In the said application, he claimed that he was the owner of the entire house in question through sale deed of the year 1966 executed by Mohd Razi (real brother of Mohd Rafi) in his favour. Petitioner further claimed that Mohd. Razi was the owner of house in question as it had been orally gifted to him by Smt Taiyaba Khatoon. Application of petitioner Riazul Islam was rejected by JSCC Moradabad on 8.5.2006. The said application had been registered as Misc. Case No. 51 of 2005. True copy of the said order is Annexure 4 to the writ petition. Against the said rejection order petitioner filed Misc. Appeal No. 41 of 2006. ADJ Court No. 7 Moradabad through judgment and order dated 14.8.2006, copy of which is Annexure 5 to the writ petition dismissed the appeal. This writ petition is directed against orders dated 8.5.2006 passed by JSCC and dated 14.8.2006 passed by appellate Court/ADJ Moradabad. 4. As far as first floor of the house in question is concerned which is not in dispute in this writ petition it was let out by Mohd Rafi to Abdul Rauf. Mohd Rafi filed suit for eviction against Abdul Rauf, which was decided in terms of compromise and Mohd Rafi agreed that he would not evict Abdul Rauf who started paying rent to him. Thereafter Mohd Rafi alleged that Ziaul Islam and his brother took forcible possession of first floor or part thereof. Mohd Rafi filed suit for eviction against Abdul Rauf, which was decided in terms of compromise and Mohd Rafi agreed that he would not evict Abdul Rauf who started paying rent to him. Thereafter Mohd Rafi alleged that Ziaul Islam and his brother took forcible possession of first floor or part thereof. Mohd Rafi filed original suit No. 511 of 1978 against Riyazul Islam and his brothers for their eviction from first floor. The said suit is still pending. 5. In the suit which Mohd Rafi had filed against Abdul Rauf in respect of first floor, Mohd Razi filed impleadment application which was rejected. Riazul Islam and Sirajul Islam also filed impleadment application, which was rejected. 6. It was alleged that Mohd Razi in the year 1966 had sold the house in dispute to Riazul Islam petitioner and Sirajul Islam his brother. It was further alleged that thereafter Sirajul Islam executed a sale deed of his half share in favour of Riazul Islam and one Sachidanand Sharma as benami. 7. In SCC suit No. 1613 of 1972 filed in respect of ground floor of the house in question by Mohd Rafi against Ziaul Islam for eviction, Riazul Islam and Sachidanand Sharma filed impleadment application which was rejected on 18.9.1973 and revision filed against the same was also dismissed on 18.4.1975. 8. It is important to note that in the suit for eviction against Ziaul Islam his brother Riazul Islam petitioner appeared as witness and stated that he had dispossessed his real brother Ziaul Islam in 1969 while Ziaul Islam who also appeared as witness stated that his brothers Riazul Islam and Sirajul Islam were residing with him in the house in dispute. The theory of dispossession of Ziaul Islam in 1969 is not believable as Ziaul Islam contested the proceedings and challenged the orders even thereafter. Against eviction decree revision was filed by Ziaul Islam in 1976 and after its dismissal Ziaul Islam filed writ petition in this Court and review petition. Ziaul Islam appeared in the writ petition No. 9426 of 1988 (directed against order of A.D.J. allowing review petition) wherein he was a respondent. It is not disputed that almost since start of tenancy of Ziaul Islam his brothers including petitioner were residing with him on the ground floor. 9. Ziaul Islam appeared in the writ petition No. 9426 of 1988 (directed against order of A.D.J. allowing review petition) wherein he was a respondent. It is not disputed that almost since start of tenancy of Ziaul Islam his brothers including petitioner were residing with him on the ground floor. 9. Relevant rules of Order XXI, of CPC i.e. Rules 97, 98, 101, 103 and 104 are quoted below : “97. Resistance or obstruction to possession of immovable property—(1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction. [(2) Where any application is made under sub-rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.] [98. Orders after adjudication.—(1) Upon the determination of the questions referred to in rule 101, the Court shall, in accordance with such determination and subject to the provisions of sub-rule (2),— (a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or (b) pass such other order as, in the circumstances of the case, it may deem fit. (2) Where, upon such determination, the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation or on his behalf, or by any transferee, where such transfer was made during the pendency of the suit or execution proceeding, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the Court may also, at the instance of the applicant, order the judgment-debtor, or any person acting at his instigation or on his behalf, to be detained in the civil prison for a term which may extend to thirty days]. [101. [101. Question to be determined.—All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application, and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions.] [103. Orders to be treated as decrees.—Where any application has been adjudicated upon under Rule 98 or rule 100, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree.] [104. Order under Rule 101 or rule 103 to be subject to the result of pending suit.—Every order made under Rule 101 or rule 103 shall be subject to the result of any suit that may be pending on the date of commencement of the proceeding in which such order is made, if in such suit the party against whom the order under Rule 101 or Rule 103 is made has sought to establish a right which he claims to the present possession of the property.” 10. By virtue of Order XXI Rule 104, C.P.C. impugned orders, which have been passed under Rules 101 and 103, are subject to O.S No. 338 of 2003 filed by petitioner Hakim Riyazul Islam against Akhtar Jahan, Usman Ali Sabri, Zafar Iqbal and Hakim Ziaul Islam. The said suit is pending before the Civil Judge (S.D.) Moradabad. Copy of plaint has been annexed as Annexure 1 to the amendment application bearing date 14.9.2006 (amendment application is allowed). The prayer in the plaint of the said suit is that declaratory decree in favour of the plaintiff against the defendants be passed to the effect that plaintiff is exclusive and solitary owner and is in possession of the property in dispute. The entire triple storied house in question is property in dispute in the said suit. It has not been stated that as to whether any temporary injunction has been granted in the said suit or not. The entire triple storied house in question is property in dispute in the said suit. It has not been stated that as to whether any temporary injunction has been granted in the said suit or not. If orders under Order XXI Rule 101 and 103, C.P.C. are subject to the result of any suit pending on the date of commencement of the said proceedings then naturally such orders are also subject to the interim orders passed in the said suit. 11. In view of the fact that impugned orders are subject to result of O.S. No. 338 of 2003 it is not proper to say anything regarding validity of impugned orders as it may jeopardize the case of the parties in the suit. The aforesaid suit is an efficacious alternative remedy against the impugned orders, which is being pursued hence writ petition is dismissed on the ground of alternative remedy. 12. However, it is clarified that if no application for temporary injunction has been made in the said suit then it may now be filed by the petitioner. While considering temporary injunction matter, the Court may consider the desirability of imposing reasonable conditions in case it is inclined to grant temporary injunction. One of the possible conditions may be to direct the petitioner either to pay to the defendants No. 2 and 3 monthly amount equivalent to current presumptive monthly rent of the ground floor of house in question or to deposit the same in Court. Similarly, if temporary injunction has already been granted then for imposition of reasonable condition defendants No. 2 and 3 of the suit who are respondents No. 1 and 2 in this writ petition may apply for imposition of the condition in the said suit. 14. With the above observations, writ petition is dismissed on the ground of alternative remedy of suit which has already been filed as O.S. No. 338 of 2003. If considered proper, the said suit may be consolidated with O.S. No. 511 of 1978. ————