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2019 DIGILAW 1019 (JHR)

Deepak Kumar Barnwal v. State of Jharkhand

2019-05-09

SUJIT NARAYAN PRASAD

body2019
ORDER : 1. This writ petition has been filed under Articles 226 and 227 of the Constitution of India whereby and where under the petitioner being aggrieved with the action of the Sub-Divisional Officer, Dhanbad by virtue of decision taken therein on 09.04.2019 as contained in Memo No.424 by which his shop has been sealed in connection with the execution of decree passed in Title Suit No.273 of 2011 for execution of the decree passed in execution Case No.185 of 2015 has been filed. 2. The brief facts of the case and as per the pleading made in the writ petition is that the petitioner was a tenant of respondent No.6 and has opened a shop for carrying out his business of S.T.D. Booth, since 2000 and now a clinic is also being run in the said shop. The said respondent No.6 has purchased the 6 Katha of land in question by registered sale deed No.6135 and 6125 from one Subhash Kumar Gupta on 28.09.1994 and 27.09.1994 respectively and the respondent No.7 also claims of purchasing of 2 Katha of the land in the said land by sale deed No.9096 dated 27.06.2011 and as a result of said dispute the respondent No.7 has filed title suit being Title Suit No.273 of 2011 praying inter alia for a decree of recovery for possession of the land area 2 Katha, and structures also. The said title suit was also contested by the respondent No.6 and 7 and ultimately the same was decreed in favour of the respondent No.7 on 08.07.2015 against which a Title Appeal No.82 of 2015 was filed by the respondent No.5 and 6 which was also dismissed on 09.02.2016 against which second appeal was filed being Second Appeal No.160 of 2016 which is pending before this Court. The said second appeal an interim order of status quo was granted by this Court on 08.05.2017 but later on it was not continued but a date was fixed on 25.04.2019 for hearing of the case. 3. The said second appeal an interim order of status quo was granted by this Court on 08.05.2017 but later on it was not continued but a date was fixed on 25.04.2019 for hearing of the case. 3. It is the case of the petitioner that the respondent No.7 has made an agreement of tenancy on 17.12.2016 with the petitioner to the effect that the rent will be paid to the respondent No.7 for the rent of the shop in question and as such the petitioner has become the tenant of respondent No.7 and enjoying the premises but all of a sudden the petitioner has been directed to be evicted for getting the possession of the suit property, subject matter of the Title Suit No.273 of 2011 for which, an execution case being Execution Case No.185 of 2015 has been filed. The respondent No.6 has sealed the shop and as such the authorities have exceeded his jurisdiction sealing the shop without considering after the decree the petitioner has come with an agreement with the respondent No.7 on 17.12.2016 and as such the possession of the tenanted premises in view of the aforesaid agreement should not have been made by the authority. Mr. Pasari, learned counsel for the petitioner has relied upon the judgments rendered by the Hon’ble Apex Court in the case of V. Dhanapal Chettiar Vrs. Yesodai Ammal reported in (1979) 4 SCC 214 and Indian bank Vrs. Nippon Enterprises South and Ors. reported in (2016) 15 SCC 79 . 4. Ms. Aanya, learned A.C. to G.P.-IV, appearing for the State respondent has vehemently opposed the submission and prayer, made on behalf of the petitioner by referring to the decree passed in Title Suit No.273 of 2011 and has submitted that the petitioner is claiming the tenancy created in his favour but the creation of tenancy is on the basis of an agreement dated 17.12.2016 which admittedly after the decree passed by the trial court and therefore, no binding effect upon the decree passed by the trial court would be there, and as such the writ court sitting under Articles 226 and 227 of the Constitution of India may not exercise its extraordinary jurisdiction in coming in the way of execution of the decree passed by the competent court of civil jurisdiction. 5. 5. Having heard the learned counsel for the parties and after appreciating their rival submissions, the factual aspects which is not in dispute in this case is that a declaratory suit has been filed by one Sanjay Kumar Singh, the respondent No.7 herein being the Title Suit No.273 of 2011 for declaration of right and title pertaining to Mouza No.7 in Katha No.136 appertaining to Plot No.3218 measuring an area 2 Katha or to say 1440 Sq. Ft; In the said title suit one Arbind Kumar Singh along with five others were the defendants. 6. The trial court has passed the judgment and decree in Title Suit No.273 of 2011 on contest by passing the order with a direction upon the judgment debtor to handover the suit property within a period of three months in favour of the respondent No.7/plaintiff against which the judgment debtor has preferred an appeal which has been dismissed against which the second appeal is pending before this Court. 7. The plaintiff has filed execution case being Execution Case No.185 of 2015 wherein the executing court has proceeded for executing the decree passed in Title Suit No.273 of 2011 in pursuance thereto the Sub-Divisional Officer, Dhanbad has passed an order upon the concerned competent authority to depute the Police Personnel on 17.04.2019 at 10.00 a.m. for handing over the possession of the suit property in favour of the respondent No.7/plaintiff, the decree holder. The petitioner being aggrieved with the aforesaid order before this Court invoking the jurisdiction as conferred under Articles 226 and 227 of the Constitution of India. 8. The petitioner being aggrieved with the aforesaid order before this Court invoking the jurisdiction as conferred under Articles 226 and 227 of the Constitution of India. 8. The sole claim raised by the petitioner that he has become tenant by virtue of the agreement dated 17.12.2016 and therefore, he being a valid tenant and as such the eviction can only been made by resorting to the provision of tenancy law but this argument of the learned counsel for the petitioner is not acceptable to this Court for the reason that the petitioner is claiming to be a tenant by virtue of agreement which has been executed on 17.12.2016 which is after the decree pronounced in Title Suit No.273 of 2011 i.e. on 08.07.2015 and therefore, in the agreement, if entered, after pronouncement of the judgment/decree in title suit, the same will be not come in the way of execution of the suit property, in view of the fact that the executing court is to see the decree and follow it is to be executed and there cannot be any deviation from the decree passed by the competent court of civil jurisdiction. The executing court keeping that the possession of law and taken into consideration has passed the order to execute in the decree in consequence thereof, the administrative authority has passed an order for eviction of the petitioner from the aforesaid premises and as such it cannot be said that any fundamental right or any legal vested right of the petitioner has infringed. The reliance put forth by the learned counsel for the petitioner in the judgments rendered in the case of Dhanapal Chettiar Vrs. Yesodai Ammal and Indian bank Vrs. Nippon Enterprises South and Ors. (supra) are not applicable in the facts and circumstances involved therein. Since in the aforesaid judgment the issues are that the tenant cannot be evicted save and except the recourse of tenancy law while herein the petitioner has failed to show any tenancy created by virtue of any relevant documents save and except the agreement dated 17.12.2016 which is post decree agreement and as such the tenancy cannot be said to be valid one which will come in the way of execution of the decree passed by the competent court of civil jurisdiction. 9. 9. It is also important to refer herein that the Articles 226 and 227 have been invoked for issuance of direction sought for in this writ petition. The provision of Article 226 is to be exercised by the High Court only in case of where there is any infringement of fundamental right or legal right accrued by the petitioner has been taken away but so far as exercising the power under Article 227 of the Constitution of India is concerned, the same is the power of superintendence. 10. It is not in dispute herein that the petitioner has not questioned the decree passed by the original court rather deputing the Police Personnel for executing the decree passed by the competent court of civil jurisdiction, the provision of Article 227 has been invoked and therefore, there is no need to invoke the said power by the petitioner since it is not a question exercising the power of superintendence since nothing has been argued or nothing has been pleaded to that effect, therefore, the writ petition is not maintainable so far as the Article 227 of the Constitution of India is concerned. 11. So far as the provision of Article 226 is concerned, it cannot be disputed and is not in dispute that the question of legal vested right of the infringement of fundamental right is to be looked into by the writ court in exercising the power conferred under Article 226 of the Constitution of India. 12. In view of the entirety and facts and circumstances of the case, this Court is not inclined to interfere with the impugned decision dated 09.04.2019 as contained under Annexure-4, accordingly, this writ petition fails and it is dismissed.