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2009 DIGILAW 885 (JHR)

Navin Kumar Modi v. Shekhar Kumar Modi

2009-06-26

D.G.R.PATNAIK

body2009
Judgment Challenge in this writ application is to the order dated 18.03.2008, passed by the Sub-Judge 1, Dumka in Title Execution Case No. 7 of 2007, whereby the petitioner’s objection filed under Order 21 Rule 36 read with Section 151 of the Code of Civil Procedure was dismissed. 2. Heard Mr. Amit Kumar Das, learned counsel for the petitioner and Mr. P. K. Prasad, learned senior counsel for the Respondents. 3. Facts of the case lie in a narrow compass:- The Respondent Shekhar Kumar Modi (Respondent No. 1), had filed a Partition Suit No. 29 of 2001 against his co-sharers including one Kishan Kumar Modi (defendant No. 4/Respondent No. 5). A preliminary decree was passed on 15.09.2004, followed by a final decree on 28.05.2007, in which the shop premises of which the petitioner claims to be in occupation and possession, was allowed to the share of the plaintiff/decree holder (Respondent No. 1). The decree holder sought for execution of the decree and for delivery of Khas possession of the aforementioned shop premises. The petitioner filed his objection under Order 21 Rule 36 of the Code of Civil Procedure on the ground that he was inducted as a monthly tenant in the shop premises for a period of ten years commencing from 01.11.2005 by virtue of a written agreement of tenancy (Annexure-1) by the defendant No. 4 Kishan Kumar Modi and since he was not impleaded as a Party in the Partition Suit, the decree passed in the suit is not binding upon him and at best the decree holder can take symbolic possession of the shop premises and the petitioner cannot be evicted from the shop in execution of the final decree of partition. It is further contended, that the petitioner being a statutory tenant, his eviction from the shop premises can be made only in accordance with the procedure laid down under the provisions of the Bihar Buildings (Lease, Rent & Eviction) Control Act, and not by virtue of the partition decree. In support of his objections, the petitioner had filed a copy of the purported tenancy Agreement alongwith a few rent receipts issued to him by his aforesaid landlord. 4. In support of his objections, the petitioner had filed a copy of the purported tenancy Agreement alongwith a few rent receipts issued to him by his aforesaid landlord. 4. The decree holder/Respondent No. 1 contested the petitioner’s objection on the ground that the objector is none else but the own cousin of the defendant No. 4 and the objector has been set up only to defeat the benefits of the decree accrued to the decree holder. It was also contended that during the pendency of the partition suit and after the date of the preliminary decree, the defendant No. 4 being a co-sharer, could not have legally entered into any lease Agreement with any outsider in respect of the suit property. The fact that the alleged transaction is only a sham transaction would also be evident from the purported agreement of tenancy, which is an undated and unregistered document and obviously prepared after the passing of the final decree. 5. The learned court below after considering the submissions of the parties, dismissed the petitioner’s application disbelieving the petitioner’s claim of tenancy in respect of the disputed shop premises. 6. Mr. Amit Kumar Das, learned counsel for the petitioner while reiterating the same grounds as advanced in the petition filed before the court below by the petitioner, explains further that the petitioner was not aware of the pendency of the partition suit or the preliminary decree passed therein, and he was not even made a party in the partition suit, although he was inducted as a tenant in the shop premises on 01.11.2005 i.e. much prior to the passing of the final decree. Replying to the contention of the Respondent No. 1 that the Agreement of Tenancy does not bear any date and it is an unregistered document which cannot be admitted into evidence, learned counsel submits that even though the document is undated but the recitals in the Agreement specifically state that the tenancy was for a period of ten years commencing from 01.11.2005 and an agreement of tenancy can be made even orally and not necessarily by any written instrument. Learned counsel argues that even otherwise, it cannot be disputed that the petitioner was inducted as a tenant in the shop premises by one of the co-sharers, who was entitled even as per the preliminary decree, to one-third share in the Joint Family Property and therefore, could have legally executed the lease agreement in favour of the petitioner in respect of the shop premises. 7. Mr. P. K. Prasad, learned senior counsel for the Respondent No. 1 while supporting the impugned order of the court below would submit that the partition suit was filed in the year 2001 by the petitioner in which Kishan Kumar Modi, one of the co-sharers, was impleaded as defendant No. 4. The preliminary decree was passed on 15.09.2004 and in the final decree passed on 28.09.2007, the shop premises, was allotted to the share of the decree holder/Respondent No. 1. The purported tenancy in respect of the shop premises, was never created in favour of the petitioner and in fact, such purported tenancy is a sham transaction. Learned counsel adds that besides the fact that the agreement of tenancy is an undated document, the recitals in the purported agreement would also declare that it is a manufactured document. Learned counsel explains that the portion situated on the northern boundary of the disputed shop premises was allotted to the share of the decree holder Shekhar Kumar Modi only after the final decree and not before. Yet, the northern boundary of the shop premises in dispute has been described in the Agreement by reference to the possession of Shekhar Kumar Modi namely, the decree holder. This apparently confirms that the purported agreement, is a manufactured document. 8. From the perusal of the impugned order of the learned court below, it appears that after scrutinizing the purported tenancy Agreement produced by the petitioner, the learned court below has refused to rely upon the same on the grounds (i) that it is an undated document, (ii) that though it purports to create a right for a period of ten years, but it is an unregistered document and not acceptable in evidence and (iii) that by the description of the shop premises as given in the agreement, the agreement is apparently a document created after the final decree. 9. 9. The learned court below has elaborately discussed the facts pleaded by the petitioner and has also scrutinized the documents including the purported tenancy Agreement produced by the petitioner and has recorded its finding therein, that the transaction of lease as claimed by the petitioner, is not a real transaction and that even otherwise, such lease agreement could not be legally executed by the defendant No. 4 in favour of the petitioner during the pendency of the Partition suit and after passing of the preliminary decree. Upon such findings, the learned court below has dismissed the petitioner’s objection and has issued the writ for delivery of Khas possession of the shop premises to the petitioner. 10. I do not find any infirmity or illegality in the impugned order nor any merit in this writ application. This application is accordingly, dismissed. However there shall be no order towards costs.