Raja Ram Prasad Gupta and anr. Vs. Ram Chandra Prasad and ors. - Court Judgment

Excerpt:
eviction order - stay of proceedings--sale deeds executed in favour of appellants forged and fabricated--they got no right title or possession by virtue of sale deeds--question of date of execution of sale deed is irrelevant on finding the person executing sale deed without right and title over the transferred land--no case of stay of further proceedings--i.a. no. 4340 of 2003 disposed of. - - 1. this is an order on i.a. no. 4340 of 2003 filed by appellants under order xli, rule 5, code of civil procedure and supplementary affidavit under section 151 and order xli, rule 5, code of civil procedure praying for setting aside the order dated 22.9.2003 passed by registrar general and staying the further proceedings in title execution case no. 4 of 2002 filed by respondent first party in the court of subordinate judge-iv, madhubani.2. the case of appellants is that they have filed this appeal against the judgment and decree dated 3.1.2002 passed by subordinate judge-iv, madhubani in title suit no. 26 of 1993 whereby the appellants and other defendants have been directed to vacate the suit premises and hand over the vacant possession of the same to the plaintiffs-respondents. the further case of appellants is that they were defendants-second party before the court below and they filed their written statement but they were disallowed by the court below to examine the witnesses brought against them and since the impugned decree has been passed in their absence, therefore, the eviction order is fit to be quashed by this court and besides this, the suit of plaintiffs- respondents is liable to be dismissed on the grounds mentioned in the written statement as well as in the memo of appeal filed before this court. challenging the order dated 22.9.2003 passed by registrar general rejecting the prayer of appellants for staying the further proceeding of title execution case no. 4 of 2002 and also vacating ad interim stay granted earlier, the case of the appellants is that suit property is, admittedly, a residential house and, admittedly, appellants are in possession of the same and the registrar general has wrongly observed that it has not clearly been shown that the suit property is a residential house. it has also been argued that the learned registrar general has rejected the prayer of appellants observing that it is not a case of landlord and tenant meaning thereby that stay can be granted only in a case of landlord and tenant which is against the principle of natural justice and the registrar general has further observed that no irreparable loss or injury will be caused if the stay is refused which is against the principle laid down by this court in the case of sahid mian and anr. v. anirudh prasad, 1998 (2) pljr 127, where it has been held that if any person inducts tenant in the house it is the duty of such person to protect the tenant's interest since in an execution proceeding, tenants cannot approach the court for any relief and if the tenants are dispossessed, it would amount to dispossession. the learned counsel for the plaintiffs-respondents has opposed the prayer of plaintiffs- appellants.3. the plaintiffs-respondents filed a title suit for declaration of their title and possession over the suit land and also for declaration that sale deeds executed by defendant no. 1 girja devi and her husband baldeo sah in favour of different persons on different dates in respect of suit land were collusive, fraudulent and without consideration. the case of plaintiff-respondent before the court below was that he purchased the suit land from kumar yagneshwar singh and he paid consideration money to him in token of which money receipt dated 1.4.1962 was granted to him by kumar yagneshwar singh who delivered possession to the plaintiff on that very day but because ceiling case was pending against the estate of kumar yagneshwar singh so sale deeds with respect to suit land were executed on 21.4.1992 and 18.8.1992 after the disposal of ceiling case and in these sale deeds, it is clearly stated that vendor had already received consideration money and after getting the occupation over the suit land in the year, 1962, plaintiff- respondent's father constructed four rooms and let out those rooms to baldeo sah on a monthly rental of rs. 200/- and baldeo sah paid rent to father of plaintiff and even after the death of father of plaintiff, baldeo sah and his wife girja devi who was defendant no. 1 in the court below used to pay rent to the plaintiff regularly but from january, 1992, they stopped the payment of rent and when in the month of may and june, 1992, plaintiff-respondent made demand for payment of rent, he came to learn that baldeo sah and his wife had inducted a number of tenants over suit premises and later on he came to know that appellants, who were defendants 4 and 5 before the court below, were claiming right, title over the suit land on the basis of two kewals dated 9.4.1992 and 14.2.1992 executed in their favour by girja devi in respect of some portion of suit land. he also came to know that girja devi had also executed some other sale deeds in favour of other defendants.4. the case of defendants-appellants before the court below was that the suit land belonged to kumar jibeshwar singh over which baldeo sah, husband of defendant no. 1 took forcible possession and inducted few tenants in the year, 1970 and later on when kumar jibeshwar singh and subeshwar singh took steps to remove baldeo sah from suit premises, he negotiated to purchase land from them but because of pendency of ceiling cases, baldeo sah paid consideration money to them by virtue of a challan in his own name and in the name of his wife and after the death of baldeo sah, his wife girja devi transferred the suit land in favour of defendants-appellants and some other persons.5. the suit on contest was decreed and all defendants including appellants were directed to vacate the suit premises and hand over its vacant possession within sixty days of the order. the learned counsel appearing on behalf of defendants-appellants, by relying on an authority reported in the case of gopal vat industries v. state of bihar and ors., 2003 (1) pljr 6, has argued that an appellate court can stay operation of a decree and by relying on authority reported in the case of fateh khan v. daim and ors., air 1927 lahore 169 has further submitted that vendee's possession should not be disturbed till final decision of appeal if appeal has been preferred by vendee and by relying on authority report in the case of smt. kaushalya kumar and anr. v. state of bihar and ors., 2002 (3) pljr 390, has further argued that once a matter is admitted for hearing, it becomes the duty of the court to preserve the subject matter of litigation by an appropriate order so that it is available at the time of final adjudication and the decree does not become a barren one. the learned counsel appearing on behalf of the respondents has submitted that the defendants-appellants are claiming their title over the portion of suit land on the basis of sale deeds said to be executed in their favour by girja devi but then girja devi herself had no right title over the suit land, therefore, she could not have transferred any right or title over any portion of suit land to any body and the sale deeds executed by her in favour of the defendants-appellants are of no value. he has further submitted that the suit properties originally belongs to the family of darbhanga raj and it belonged to raja bahadur bisheshwar singh is not in dispute and it is also not disputed that raja bahadur bisheshwar singh had three sons, namely, kumar jibeshwar singh, kumar yagneshwar singh and kumar subeshwar singh and the plaintiffs-respondents filed a copy of indenture deed dated 29.10.1957 which has been marked as exhibit 9 before the court below showing that the suit land was allotted in the share of kumar yagneshwar singh whereas the defendants-appellants could not produce any document to show that baldeo sah, husband of their vendor. girja devi had purchased the land from kumar jibeshwar singh and kumar subeshwar singh. the case of defendants-appellants is that baldeo sah, husband of their vendor girja devi had paid the consideration money of suit land to its owners by a challan which fact could not be proved by them before the court below which has come to the conclusion that sale deeds executed in their favour by girja devi were forged and fabricated and defendants-appellants got no right, title or possession by virtue of the sale deeds. the argument advanced on behalf of defendants-appellants is that their sale deeds by girja devi had been executed much before the sale deeds said to be executed in favour of the plaintiffs-respondents by kumar yagneshwar singh. question of date of execution of a sale deed becomes quite irrelevant when it is found that the person who is executing sale deed in favour of any other persons has got no right, title over the land which he is transferring by the sale deed. i, therefore, find no force in this argument.6. considering the entire materials on record, i find that defendants-appellants have not been able to make out any case for stay of further proceedings of execution case no. 4 of 2002. in the result, their prayer for such stay is rejected and i.a. no. 4340 of 2003 stands disposed of.

Judgment:
1. This is an order on I.A. No. 4340 of 2003 filed by appellants under Order XLI, Rule 5, Code of Civil Procedure and supplementary affidavit under Section 151 and Order XLI, Rule 5, Code of Civil Procedure praying for setting aside the order dated 22.9.2003 passed by Registrar General and staying the further proceedings in Title Execution Case No. 4 of 2002 filed by respondent first party in the Court of Subordinate Judge-IV, Madhubani.

2. The case of appellants is that they have filed this appeal against the judgment and decree dated 3.1.2002 passed by Subordinate Judge-IV, Madhubani in Title Suit No. 26 of 1993 whereby the appellants and other defendants have been directed to vacate the suit premises and hand over the vacant possession of the same to the plaintiffs-respondents. The further case of appellants is that they were defendants-second party before the Court below and they filed their written statement but they were disallowed by the court below to examine the witnesses brought against them and since the impugned decree has been passed in their absence, therefore, the eviction order is fit to be quashed by this Court and besides this, the suit of plaintiffs- respondents is liable to be dismissed on the grounds mentioned in the written statement as well as in the memo of appeal filed before this Court. Challenging the order dated 22.9.2003 passed by Registrar General rejecting the prayer of appellants for staying the further proceeding of Title Execution Case No. 4 of 2002 and also vacating ad interim stay granted earlier, the case of the appellants is that suit property is, admittedly, a residential house and, admittedly, appellants are in possession of the same and the Registrar General has wrongly observed that it has not clearly been shown that the suit property is a residential house. It has also been argued that the learned Registrar General has rejected the prayer of appellants observing that it is not a case of landlord and tenant meaning thereby that stay can be granted only in a case of landlord and tenant which is against the principle of natural justice and the Registrar General has further observed that no irreparable loss or injury will be caused if the stay is refused which is against the principle laid down by this court in the case of Sahid Mian and Anr. v. Anirudh Prasad, 1998 (2) PLJR 127, where it has been held that if any person inducts tenant in the house it is the duty of such person to protect the tenant's interest since in an execution proceeding, tenants cannot approach the court for any relief and if the tenants are dispossessed, it would amount to dispossession. The learned counsel for the plaintiffs-respondents has opposed the prayer of plaintiffs- appellants.

3. The plaintiffs-respondents filed a title suit for declaration of their title and possession over the suit land and also for declaration that sale deeds executed by defendant No. 1 Girja Devi and her husband Baldeo Sah in favour of different persons on different dates in respect of suit land were collusive, fraudulent and without consideration. The case of plaintiff-respondent before the Court below was that he purchased the suit land from Kumar Yagneshwar Singh and he paid consideration money to him in token of which money receipt dated 1.4.1962 was granted to him by Kumar Yagneshwar Singh who delivered possession to the plaintiff on that very day but because ceiling case was pending against the estate of Kumar Yagneshwar Singh so sale deeds with respect to suit land were executed on 21.4.1992 and 18.8.1992 after the disposal of ceiling case and in these sale deeds, it is clearly stated that vendor had already received consideration money and after getting the occupation over the suit land in the year, 1962, plaintiff- respondent's father constructed four rooms and let out those rooms to Baldeo Sah on a monthly rental of Rs. 200/- and Baldeo Sah paid rent to father of plaintiff and even after the death of father of plaintiff, Baldeo Sah and his wife Girja Devi who was defendant No. 1 in the court below used to pay rent to the plaintiff regularly but from January, 1992, they stopped the payment of rent and when in the month of May and June, 1992, plaintiff-respondent made demand for payment of rent, he came to learn that Baldeo Sah and his wife had inducted a number of tenants over suit premises and later on he came to know that appellants, who were defendants 4 and 5 before the Court below, were claiming right, title over the suit land on the basis of two kewals dated 9.4.1992 and 14.2.1992 executed in their favour by Girja Devi in respect of some portion of suit land. He also came to know that Girja Devi had also executed some other sale deeds in favour of other defendants.

4. The case of defendants-appellants before the Court below was that the suit land belonged to Kumar Jibeshwar Singh over which Baldeo Sah, husband of defendant No. 1 took forcible possession and inducted few tenants in the year, 1970 and later on when Kumar Jibeshwar Singh and Subeshwar Singh took steps to remove Baldeo Sah from suit premises, he negotiated to purchase land from them but because of pendency of ceiling cases, Baldeo Sah paid consideration money to them by virtue of a challan in his own name and in the name of his wife and after the death of Baldeo Sah, his wife Girja Devi transferred the suit land in favour of defendants-appellants and some other persons.

5. The suit on contest was decreed and all defendants including appellants were directed to vacate the suit premises and hand over its vacant possession within sixty days of the order. The learned counsel appearing on behalf of defendants-appellants, by relying on an authority reported in the case of Gopal Vat Industries v. State of Bihar and Ors., 2003 (1) PLJR 6, has argued that an appellate Court can stay operation of a decree and by relying on authority reported in the case of Fateh Khan v. Daim and Ors., AIR 1927 Lahore 169 has further submitted that vendee's possession should not be disturbed till final decision of appeal if appeal has been preferred by vendee and by relying on authority report in the case of Smt. Kaushalya Kumar and Anr. v. State of Bihar and Ors., 2002 (3) PLJR 390, has further argued that once a matter is admitted for hearing, it becomes the duty of the Court to preserve the subject matter of litigation by an appropriate order so that it is available at the time of final adjudication and the decree does not become a barren one. The learned counsel appearing on behalf of the respondents has submitted that the defendants-appellants are claiming their title over the portion of suit land on the basis of sale deeds said to be executed in their favour by Girja Devi but then Girja Devi herself had no right title over the suit land, therefore, she could not have transferred any right or title over any portion of suit land to any body and the sale deeds executed by her in favour of the defendants-appellants are of no value. He has further submitted that the suit properties originally belongs to the family of Darbhanga Raj and it belonged to Raja Bahadur Bisheshwar Singh is not in dispute and it is also not disputed that Raja Bahadur Bisheshwar Singh had three sons, namely, Kumar Jibeshwar Singh, Kumar Yagneshwar Singh and Kumar Subeshwar Singh and the plaintiffs-respondents filed a copy of indenture deed dated 29.10.1957 which has been marked as Exhibit 9 before the Court below showing that the suit land was allotted in the share of Kumar Yagneshwar Singh whereas the defendants-appellants could not produce any document to show that Baldeo Sah, husband of their vendor. Girja Devi had purchased the land from Kumar Jibeshwar Singh and Kumar Subeshwar Singh. The case of defendants-appellants is that Baldeo Sah, husband of their vendor Girja Devi had paid the consideration money of suit land to its owners by a challan which fact could not be proved by them before the court below which has come to the conclusion that sale deeds executed in their favour by Girja Devi were forged and fabricated and defendants-appellants got no right, title or possession by virtue of the sale deeds. The argument advanced on behalf of defendants-appellants is that their sale deeds by Girja Devi had been executed much before the sale deeds said to be executed in favour of the plaintiffs-respondents by Kumar Yagneshwar Singh. Question of date of execution of a sale deed becomes quite irrelevant when it is found that the person who is executing sale deed in favour of any other persons has got no right, title over the land which he is transferring by the sale deed. I, therefore, find no force in this argument.

6. Considering the entire materials on record, I find that defendants-appellants have not been able to make out any case for stay of further proceedings of Execution case No. 4 of 2002. In the result, their prayer for such stay is rejected and I.A. No. 4340 of 2003 stands disposed of.