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2013 DIGILAW 1459 (ALL)

PREM CHAND v. ADITYA KUMAR

2013-05-17

S.U.KHAN

body2013
JUDGMENT Hon’ble S.U. Khan, J.—Heard Sri M.D. Singh Shekhar, learned senior counsel assisted by Sri R.D. Tiwari, learned counsel for the petitioner and Sri P.K. Jain, learned senior counsel assisted by Sri M.K. Jain, learned counsel for sole respondent. 2. The first order which has been challenged is dated 21.9.2012 passed by Civil Judge (J.D.) Hapur in execution case No. 30 of 1986 Dr. Aditya Kumar Sharma v. Prem Chand. Against the said order petitioner filed Civil Revision No. 43 of 2012 which was dismissed by A.D.J. Hapur on 18.4.2013, which has also been challenged through writ petition. 3. Petitioner is defendant judgment debtor and sole respondent is plaintiff decree holder. Plaintiff filed suit for eviction against defendant in the form of O.S. No. 323 of 1977 Dr. Aditya Kumar Sharma v. Prem Chand, for possession stating therein that plaintiff was landlord and defendant was his tenant over the property in dispute dimension of the property were given as 57’ X 74 ‘. Munsif Hapur decreed the suit for possession on 31.5.1986 directing the defendant to deliver possession of the land in dispute to the plaintiff after removing the construction. Appeal filed against the said order was dismissed. Thereafter Second Appeal No. 444 of 1996 was filed by the petitioner in this High Court. During pendency of first appeal before lower appellate Court execution of the decree remained stayed. However before grant of stay order Execution case No. 30 of 1986 had been filed. In the second appeal execution of the decree was stayed through order dated 19.1.1998. However, the said stay order was modified on 15.4.2010 and it was directed that apart from the land admeasuring 57’ x 38’, judgment debtor should be dispossessed from the remaining land i.e. 57’ x 36’. Thereafter, proceedings of the execution recommenced. Through the impugned orders objection of the petitioners judgment debtor were rejected hence amin was directed to deliver possession over 57’ x 36’ land. 4. In the objections question of jurisdiction of the trial Court was also raised. Thereafter, proceedings of the execution recommenced. Through the impugned orders objection of the petitioners judgment debtor were rejected hence amin was directed to deliver possession over 57’ x 36’ land. 4. In the objections question of jurisdiction of the trial Court was also raised. In this writ petition also the main point which has been argued by learned counsel to the petitioner is that the Civil Court had no jurisdiction to pass the decree as it was a dispute between landlord and tenant and suit should have been filed before the J.S.C.C. As far as this question is concerned, it was raised in the suit also and is also sub judice in the aforesaid second appeal. A full bench of this Court reported in Manzurul Haq v. Hakim Mohsin Ali, AIR 1970 All 604 , has held that jurisdiction of J.S.C.C. is preferential and not exclusive and decree for eviction passed against the tenant by regular Civil Court is not nullity. 5. The second point argued before the Court below and repeated before this Court is that property was given to the plaintiff by Hareshwar Nath Mahadev Mandir, a religious trust as rent fee grant hence plaintiff was not entitled to sub let the same to the defendant petitioner. This point is also not acceptable as by virtue of Section 116 Evidence Act tenant is estopped from denying the title of the landlord at the time when property was let out to him. Moreover this point had also been decided in the suit against the petitioner and is sub judice in the Second appeal. 6. The Supreme Court in P.V. Jose v. Kanickammal, AIR 2000 SC 2688 , has held that questions decided in suit cannot be reagitated in execution and in such situation principle of res judicata applies. 7. The third point argued by learned counsel for the petitioner is that the superior landlord of the plaintiff has terminated the lease grant of the plaintiff and litigation in between them (initiated through O.S. No. 309 of 98) is going on. This point is also not tenable as until decree for the eviction is passed in favour of the superior landlord against the plaintiff the chief tenant vis-a-vis the petitioner, and the plaintiff is evicted in execution thereof, the plaintiff chief tenant is entitled to execute the decree for eviction obtained by him against his sub tenant i.e. the petitioner. This point is also not tenable as until decree for the eviction is passed in favour of the superior landlord against the plaintiff the chief tenant vis-a-vis the petitioner, and the plaintiff is evicted in execution thereof, the plaintiff chief tenant is entitled to execute the decree for eviction obtained by him against his sub tenant i.e. the petitioner. Even after termination of tenancy the Chief tenant enjoys the status of tenant at sufferance and such tenant is entitled to seek eviction of his sub tenant. I have considered this aspect in detail in a recent judgment in Jitendra Mohan Mathur v. Smt. Sarla Devi, 2013(4) ADJ 202 . 8. The Court below specifically directed that the possession shall be delivered to the decree holder of the property in suit except the property admeasuring 57’ x 38’ which was adjacent to the property in possession of Munshi Lal. For determining the location of this property the Courts below have mainly placed reliance upon para 11 of the written statement filed by the petitioner himself. There is no error in this determination. Accordingly, I do not find any error in the impugned orders. Writ petition is dismissed.