Sri Sri Radha Raman Jew and ors. Vs. Shaligram Subha Karan Kemani and anr. - Court Judgment

Excerpt:
- the court1. this is a tale of fate of a decree holder who was successful in obtaining a decree for khas possession dated 3rd december 1964 which had reached its finality on dismissal of the appeal preferred therefrom, for default and no restoration and/or readmission thereof was attempted to be made. the decree was put into execution and the same was resisted unsuccessfully by the judgment debtors right up to supreme court, however, last attempt was made by the judgment debtors seeking to review of the division bench judgment and order of execution. however, it appears that they have lost all interests now. having found the judgment debtors to be unsuccessful then came and still comes the turn of the occupants who were alleged to have been brought in by the judgment debtors and/ or sub-tenant to challenge executability of the decree. some of the objectors herein had tried previously to resist execution of the decree setting up a plea of adverse possession unsuccessfully right up to appeal court. it also appears that some of the occupants have been evicted in the process of execution but some of them have still been left out. so they have come to resist execution setting up their alleged independent right in order to get a declaration of the instant decree being non-executable.2. to appreciate the case of the above applications short history needs to be stated.3. the plaintiffs decree holder filed the eviction suit against the defendants who were the successor-in-interest of original lessees in respect of the premises nos. 23/1 and 23/2 darpanarayan tagore street and premises no. 7 ganpat bagla lane now known as ganapat bagla road. the lease dated 21st february 1941 was for 60 years on and from 15th january 1941, however, the lease was determined before expiry followed by suit and decree.4. it appears that in terms of the lease deed the lessees therein viz, one subha karan khemani since deceased and janki das khemani were entitled to create sub-lease and sub-tenancy. one of the original lessees was carrying on business under the name and style of imperial trading company and inducted various person to occupy the demarcated portion of the land and structure. it appears from the lease deed that demise premises comprised of land partly with building and structure and partlyvacant. at one point of time one manbhawati devi was occupying some portion of the land through her predecessor-in-interest, viz., her husband as a thika tenant under shaligram subha karan khemani in respect of two plots of land in the said premises and got a declaratory decree of tenancy in her favour on 24th february 1965 against the aforesaid lessee and some other persons. this decree was put into execution on 9th june 1966 and an order was passed thereon directing the sheriff to put the plaintiff decree holder in vacant possession. before this execution application could be disposed of the plaintiff decree holder/shebait died. the deity through next friend appointed by the court, withdrew the said execution application with liberty to file fresh one. the fresh execution application, however, was dismissed by an order dated 19th july 1977.5. the decree holder (deity) preferred an appeal being no. 546 of 1977 against the aforesaid order of dismissal dated 19th july 1977 and the aforesaid appeal being no. 546 of 1977 was allowed by the division bench on 16th may 1986. an slp was referred against the aforesaid judgment and order of the appellate court allowing the execution application. however, the slp was dismissed. after dismissal of the aforesaid slp a review application against the order of appellate court dated 16th may 1986 was made. since then review application has been pending without any order of stay of execution being granted. there are other proceedings including a suit initiated by various persons aiming at to stall the execution proceedings but the same do not exist now, however, the same are not much of importance.6. in or about july 1993 pursuant to the order passed by the appellate court on execution, an application was taken out for police help. the said application for police help was allowed by justice mrs. pal (as his lordship then was) by judgment and order dated 28th february 1994 after deciding the question of adverse possession raised by a group of occupants who have also along with another group come again with a different pleas of thika tenant, bharatia, sub-tenant, tenant and occupant as bustee land. an appeal was preferred against order of police help dated 28th february 1994.7. manbhawati devi who was one of the occupants claiming herself to be a thika tenant on or about 8th august 1997 filed an application being g.a. no. 3015 of 1997 praying for stay of execution of the decree dated 3rd december 1964 against her but the application was dismissed. an appeal was preferred against the order of dismissal of manbhawati's application (g.a. no. 3015 of 1997). the appellate court passed an order restraining the plaintiffs from interfering with the two plots of land under manbhawati devi. subsequently manbhawati had gone out of the picture after having filed a compromise in the executing court not to press her claim of thika tenancy.8. thereafter on or about 12th may 1998 the aforesaid application being g.a. no. 1751 of 1998 was taken out challenging maintainability of the execution of the decree dated 3rd december 1964. the appropriate interim order was passed thereon. the aforesaid execution application being g.a. no. 1751 of 1998 was once finally disposed of by the learned executing court directing the thika controller to decide and adjudicate the right, title and interest of the applicants in the said premises. however, the appealcourt on 25th august 1998 set aside the judgment and order dated 21st july 1998 of the learned executing court and remanded the matter to decide the question of independent claim of right, title and interest of the applicants in g.a. no. 1751 of 1998.9. in the aforesaid batch of applications for resisting execution of the decree question of challenge are almost same, viz., they are the thika tenants and/or bharatias and/or the occupants of bustee on khas land as such they are protected under the act, viz., calcutta thika and other tenancies and lands (acquisition and regulation) act, 1981 as amended by the amending act 21 of 1993. they are not liable to be evicted as the decree has become invalid by operation of statute. the land or premises in question now stands vested in state of west bengal.10. the learned advocates are appearing and representing other aforesaid applications separately, but they have adopted the argument advanced by mr. a.k. mitra, learned senior advocate who is appearing in support of the application being g.a. no. 1751 of 1998.11. in his written notes of arguments mr. mitra contends that premises no. 7 ganpat bagla road is a bustee on khas land as it will appear from the deed of lease dated 21st february 1941 in its paragraph 6 annexed to the plaint as well as the schedule of the lease and plaint. the plaintiffs obtained decree for eviction on the basis of the aforesaid deed of lease and averment made in paragraph 3(1) of the plaint that such land is a bustee land. in the tabular statement for execution of decree affirmed on 9th march 1966 the land was described by the plaintiff as bustee land. an order dated 9th june 1966 was drawn up on that basis. in the application for execution affirmed on 28th february 1977 the land was described as bustee land. the land which was leased out admittedly is a bustee land but the structures thereof did not belong to the lessor. he contends in view of the commencement of the aforesaid act with the amending act 1993 which has got its retrospective effect from 18th january, 1982 the land comprised in and appurtenant to bustees has been included under section 5 of said act. so on and from 18th january 1982 this land has vested to state of west bengal. he contends that in view of section 4 of the aforesaid act the provision thereof has got overriding effect even over the decree which has been passed hereunder. therefore, the plaintiffs decree holders have no right to evict the applicants. in support of his contention he has relied on decisions of supreme court reported in : [1976]2scr193 and : air1975pat164 .12. he contends that decree validly obtained by the owner of the land becomes incapable of execution if by reason of subsequent change of law, the plaintiff owner is divested of the ownership and the ownership vests in the state.13. he also contends that under section 6 read with section 3(8) of the said act his clients are not liable to be evicted, as they have become thika tenants and/or occupants of bustee land. they can be evicted under the aforesaid provision by the state of west bengal as they have become direct tenants under the said act. according to him this right of the applicant is independent right and it has to be examined by me on this application.14. he contends that the question of constructive res judicata or limitation will not apply in this case. it is a question of execution, discharge and satisfaction of the decree. he contends that if a new point of law was not raised nor there was any scope or opportunity to raise in previous proceedings between the same parties such question can be raised subsequently and the rule of res judicata will not be applicable, particularly, in this case previously before justice ruma pal on the application for police help there was no occasion to raise this point as justice mrs. pal delivered the judgment on 24th february, 1994 whereas the amendment took place on 15th march, 1994 with retrospective effect. therefore, it will not be as a constructive res judicata.15. mr. mitra contends the question of limitation does not apply in this case as under section 22 of the limitation act in case of continuing tort a period of limitation begins to run on every moment of time during which tort may continue. in this connection he seeks to rely on a decision of allahabad high court reported in air 1914 all 531.16. he contends that even the limitation will start running from the date of dispossession of a party disputing the right of decree holder to execute the decree and this has to be done within 30 days of the date of dispossession. he contends when the code provides for taking action even after dispossession within a certain limited time in this case question of limitation does not arise, as the applicants have not yet been dispossessed.17. in the recent judgment of the supreme court reported in : air1995sc358 and 1973 scc 694 this kind of application can be made by the occupants of the suit property even before dispossession.18. he contends present application is a combined application under section 47 and order 21 rule 97 of the code of civil procedure. this application has also been treated as an application under order 21 rule 97 by the division bench who remanded the application to the executing court. even factually this application cannot be treated to be barred as no effective step was taken for eviction by the sheriff until the police help pursuant to my order as threatened to dispossess. under section 8(2) of the thika tenancy act, 1981 even land belonging to debutter estates vest in the state and the only right of the deity to apply for annuity. the hon'ble supreme court has merely granted liberty to the writ petitioners relating to debutter estates to apply before the hon'ble high court for annuity.19. learned advocate appearing in the matter being g.a. no. 3541 of 1999 apart from adopting the argument of mr. mitra contends that in view of provision of sub-sections 1(a) and 4 of section 3 read with sections 4 and 5 of the act of 1981 the suit land being bustee land on which structure admittedly constructed by the tenants along with interest of the landlord as defined under section 5 has vested to the state free from all encumbrances.20. this is the sum and substance of legal basis of the respective cases of the applicants.21. mr. das, learned senior advocate while opposing this application has firstly taken the point of limitation in this case, as the right to apply before this court arose on or about 15th july 1987 and/or 18th august 1987 andfinally in the year 1992 when treats of dispossession was held out so applying the provisions of article 137 of the limitation act being the residuary article and read with section 9 of the limitation act all these applications have become time barred. he contends section 22 of the limitation act has no manner of application since it is not a continuing breach. in support of his contention on the question of limitation he has relied on decisions reported in 89 cwn 56 and : air1982cal178 .22. he contends the points raised by the applicants are hit by the principle of res judicata and/or constructive res judicata as on earlier occasion the aforesaid applicants could have raised the aforesaid points before justice ruma pal when the same set of applicants had advanced the case of adverse possession.23. his further contention is that the provision of thika tenancy act, 1981 has no manner of application. the land in question is not a bustee land nor it was demised to any thika tenant and, the corporation records will establish this fact that it is not a bustee land. according to him under provision of calcutta municipal corporation act, 1980 and previous municipal act the corporation is a final authority to decide the character of the land. the applicants all the time have claimed to be tenant and/or sub-tenant under the khemanis who were the lessees and/or manbhawati devi. previously the same applicants set up a plea of adverse possession and this time the aforesaid case of thika tenancy and/or occupancy under the bustee lands have been sought to be raised. this inconsistent case smacks of falsehood of the applicants resorted to by them to frustrate the decree. this process is sheer abuse of the court and the supreme court in its judgment reported in : air1994sc853 has not allowed the litigants to resort to falsehood before the court of law. therefore, mere use of word bustee in the lease 1941 is of no consequence. even going by the admitted documents and case of the obstructionists the alleged thika tenancy right is sought to be established after the aforesaid act came into operation. it has been held by the learned single judge of this court reported in 1998 (2) clj 463 that the thika tenancy act of 1981 has no application if such right is sought to be established after the aforesaid act came into force.24. he also contends that any objection as to the execution cannot be allowed to be taken by a person who came into the premises after the suit was filed on the principle of rule of lis pendents under section 52 of the transfer of property act. in this connection he has relied on a decision of supreme court reported in : [1998]2scr587 .25. so far the decree obtained by manbhawati devi in her suit is concerned the same is not binding upon the plaintiffs decree holder herein as they were not the parties thereto.26. having heard the respective contentions of the learned advocates on the aforesaid proposition of law i shall decide the following issues, which will broadly cover all the cases.1. whether the applications made by the aforesaid applicants are barred by limitation or not. 2. whether the contention of right of thika tenancy is tenable and protection against eviction are available under the provision ofcalcutta thika and other tenancies and lands (acquisition and regulation) act, 1981 or not. 3. whether these points can be allowed to raise on this application, in other words, the aforesaid issues are hit by the principle of constructive res judicata or not 4. whether on the facts and circumstances of this case these lands have vested into state of west bengal or not. 27. i shall decide the question of limitation first, mr. das contends that the right of making this application had accrued in 1995 when the police went to dispossess them. so from 1995 till 1998 these applications are hopelessly barred applying the provision of article 137 of the limitation act. i am unable to accept this submission in view of the fact a third party can maintain an action for restoration of possession within 30 days (article 128 of limitation act) even alter dispossession, under order 21 rule 99 of the code of civil procedure. so limitation in my view does not run from the date of threat of dispossession though the supreme court as well as various high courts including this court have held that a third party can come even before actual dispossession the moment the threat of dispossession is held out. because of the pronouncement of law courts on the right of making application of this nature in anticipation the time given under limitation act can neither be abridged nor accrual of cause of action be advanced for the purpose of limitation. it is optional for the person aggrieved to come to executing court within thirty days from date of actual dispossession or to come in advance before dispossession. admittedly the applicants herein have not been dispossessed physically, so the applications cannot be barred under the limitation act. under such circumstances i cannot accept the argument of mr. das and i uphold the contention of mr. mitra. therefore, the decisions cited by mr. das reported in 89 cwn 56 and : air1982cal178 on this point are not at all applicable for the reasons as below.89 cwn 56 : this decision of learned single judge was rendered applyingarticle 137 of the limitation act in objection under section 47 of the code by judgment debtor on question of execution, satisfaction and discharge of the decree. here i am examining independent right of the applicant under order 21 rule 100 of civil procedure code which stands on separate and different footing from section 47. moreover, here there is prescribed period of limitation, so applicability of article 137 is wholly out of question. : air1982cal178 : it is also a case of objection under section 47 of the civil procedure code and there was no prescribed period of limitation. 28. as i have already indicated i shall be deciding the aforesaid broad points of law on which all the applicants are relying on. there are number of applicants who have come up for the first time in this application, mr. mitra contends that these applications are combined one under section 47 and order 21 rules 97 and 98. he contends regardless of right, title and interest of the applicants in the land in question in view of the provision of the aforesaid act this decree cannot be executed by the decree holderas it has become non-executable by virtue of section 4 of the aforesaid act which has got overriding effect over all the decrees, law contract. in my view right of raising questions relating to execution, discharge and satisfaction of decree are not available to all the persons but the parties to the suit and/ or their representatives. the language of section 47 is clear on this point. no third party excepting purchaser of the property can raise this question. therefore, the only judgment debtor and/or their representatives are entitled to raise the question of execution, discharge and/or satisfaction of the decree. admittedly the applicants claim their independent right. so they cannot question the executabillty of the decree. moreover question of executability cannot be decided once again while dealing with an application for police help as the executability has already been decided by the appeal court previously at the instance of the judgment debtor and this has also been held in details by justice ruma pal in his lordship's judgment on 28th february 1994 and as affirmed by the appeal court on 16th january 1998. therefore i hold applicants herein cannot raise question relating to execution, discharge and satisfaction of decree under section 47 of the code. but when the third parties like the applicants herein come to protect their possession in other words to prevent the decree holder from getting the applicants evicted with their plea of independent and separate right the executing court is bound to examine their right, title and interest under order 21 rule 100 of civil procedure code. here mr. mitra contends that his clients are thika tenants and/or the occupants of a bustee lands. they are not liable to be evicted by the decree holder since the land having been vested into state of west bengal and it can evict under due process of law.29. while examining the aforesaid contention of mr. mitra first of all i examine the nature of the lands liable to be vested under section 5 of the aforesaid act. it will appear from the aforesaid section which provides as follows:-'section5 lands comprised in thika tenancies, khas lands and other lands, etc. to vest in the state.--with effect from the date of commencement of this act, the following lands along with the interest of landlords therein shall vest in the state, free from all encumbrances, namely :- (a) lands comprised in and appurtenants to tenancies of thika tenants including open areas, roads, passages, tanks, pools and drains: (b) lands comprised in and appurtenant to bustees on khas lands of landlords and lands in slum areas including open areas, roads, passages, tanks, pools and drains: (c) other lands not covered by clauses (a) and (b) held under a written lease or otherwise, including open areas, roads, passages, tanks, pools and drains; (d) lands held in monthly or other periodical tenancies, whether under a written lease or otherwise, for being used or occupied as khatal: provided that such vesting shall not affect in any way the easements, customary right or other facilities enjoyed by thika tenants, bharatias and occupiers of land coming within the purview of clauses (c) and (d).' 30. under section 6 of the aforesaid act the status of occupants in respect of the thika land on the date of vesting has been given. if a person is a thika tenant he or she will become a direct tenant under the state of west bengal and if the land is occupied by bharatia inducted by the thika tenant will be treated to be a sub-tenant under thika tenant and they are entitled to protection under west bengal premises tenancy act, 1956.31. in the said act i do not find any protection has been given or any status has been described in case of occupants in respect of bustees on khas land.32. going by the definition of thika tenant vis-a-vis landlord it will appear that thika tenant would be the owner of the structure and landlord which include superior one would be the holder and/or owner of the land and entitled to receive rent for occupation of the land from the thika tenants as explained by various decisions of this court, viz., 60 cwn 642 and 66 cwn 25 as cited by mr. das. but in other cases to wit bustee on khas land occupants cannot be owner of the structure and this will appear from the definition of the landlord as well as definition of bharatia in the said act (as amended in 1993).33. in the pleading of the applicants being represented by mr. mitra it appears all through it has been claimed that his clients are the owners of the structure and they claim the thika tenancy. in my view under the scheme of the aforesaid act the occupants qua thika tenants and bharatias are not synonymous with the occupants in the bustee on khas land. these two parallel cases cannot run together. if i take up the case of the thika tenancy then first of all there is no proof that mr. mitra's clients are owners of or have purchased or inherited the structure. even if it is assumed that they are the owners then this alleged right of thika tenancy is not applicable nor provision of act 1981 can be extended because their claims and contentions are based through khemani and/or manbhawati devi, but khemani's right, title and interest have come to an end upon determination of lease or for that matter on passing decree. this decree is not abated under section 19 of the said act as it was not passed in ejectment suit against thika tenants under the repealed thika tenancy act, 1949. therefore, whatever acts and transactions had taken place after the decree was passed the same are invalid and the same are not binding upon the decree holder, under the deed of lease all structures erected or allowed to be erected by judgment debtor/lessees were surrendered and/or deemed to have been hand over to the decree holder and creation of alleged right subsequent to decree is not binding upon the decree holder/lessor. as far as the declaratory decree in favour of manbhawati devi is concerned the same is not binding upon the decree holder as the suit was between khemani on the one hand and manbhawati devi on the other hand in relation to and/ or based on relationship of lessee and thika tenant. when the decree in favour of manbhawati was passed the alleged right of khemani had come to an end on passing of this instant decree which is earlier in point of time and factum of passing decree against khemani was not brought to notice of the learned judge passing decree in favour manbhawati devi. most importantly decree holder herein was not party to the suit of manbhawati devi. 34. that apart as rightly contended by mr. das the alleged right, title and interest as a thika tenant cannot be accepted as the same were created during pendency of the eviction suit or for that matter after passing the eviction decree. therefore, such a case is hit by the principle of lis pendens. in this connection the decisions of supreme court reported in air 1998 sc 1954 (silver line forum v. agenda trust) and : [1990]2scr961 (krishna kumar khemka. v. grindlays bank p/c and ors.) cited by him are absolutely applicable.35. moreover, the decree holder plaintiffs did not create any relationship of thika tenancy nor inducted any person in so-called bustee land as occupant thereof. it appears from the records this alleged thika tenancy right if at all was created by the lessee, khemani who in his turn got right, title and interest on the strength of the said lease which had been determined before institution of the suit and long before the act 1981 came into operation. the alleged creation of thika tenancy by khemani or by manbhawati devi is wholly unauthorized and illegal, as none of them had any right or authority. they are at the highest trespasser. such illegal and unauthorized act of a trespasser does not bind the lawful owner who had obtained a decree. it is surprising two trespassers without concurrence and consent of the owner decree holder could do as above to jeopardize and/ or affect their interest. under the decree read with the lease the khemanies were supposed to quit and make over peaceful possession to the decree holder along with the structure which was then built and constructed, instead resorting to abuse of the process of the court the judgment debtor and/or persons claiming interest through them have been setting up wholly untenable title of thika tenancy.36. in the case of sudhir kumar sarkar v. bharat sheet metal reported in 1998 (2) clj 463 it has been held by the hon'ble mr. justice n.k. mitra (as his lordship then was) amongst other in order to attract the provisions of the calcutta thika tenancies and lands (acquisition and regulation) act, 1981 especially, sections 4, 5 and 19 thereof it has to be seen whether any thika tenancy was subsisting on the date of commencement of act. in this case as on the date of commencement of the said act no thika tenancy could be said to be in existence as the eviction decree was passed in 1964. therefore, i reject the contention and concept of thika tenancy.37. as far as the question of vesting of the property on the ground of bustees under the provision of section 5 of the said act is concerned the same is wholly frivolous as first of all there is no proof that the land in question comprised in and appurtenant to bustees on khas land of landlord. the applicants are relying on the contents of the lease deed. that apart there is no proof at all. if the lease deed is sought to be relied on then the effect thereof has extinguished in view of passing of the decree preceded by determination thereof. on the date of commencement of this act that is 18th january, 1982 there was no valid and lawful relationship between the occupants and the landlord in relation to alleged bustee land consequent upon passing decree. in terms of the lease deed alleged structures were allowed to be built by the occupants and/or the lessees contrary to the scheme of relationship of landlord and occupants in bustee land in which the structure as well as the land both shall be owned by the landlords. in this case the structures admittedly belong to the occupants and/or thelessees and the same were agreed to be handed over to the lessor on determination of the lease. the relationship of landlord and bustee occupants was not created by the decree holder but by the lessees khemani if at all and this limited right of the lessees stood extinguished by determination of lease followed by decree. in order to hold a particular bustee land being vested, in my opinion, on 18th january 1982 there must be lawful relationship between the landlord and occupants of bustees on the khas land.38. moreover f find from corporation records that these lands were never treated as bustee land. under the relevant municipal law, viz., calcutta municipal act, 1923 (section 4), 1951 act (section 5(10) and calcutta municipal corporation act, 1980 (section 2(8)) the decision of corporation authorities is final as to whether a land is bustee or not, as rightly submitted by mr. das. excepting recital in the lease deed i do not find any material to hold that it is khas land and bustee. it is significant to mention that the state of west bengal has not come forward to claim the land being vested. rather thika controller acted adversely against all the applicants. thika controller was compelled to act in terms of my order passed while sitting in writ jurisdiction. justice samaresh banerjea subsequently held the order in writ jurisdiction was obtained by suppression of material facts. besides mere issuance of challans do not create any right or interest better than what was existed. the decisions cited by mr. mitra reported in : [1976]2scr193 and : air1975pat164 have no application since i have held the aforesaid act even by amendment, has not affected this decree as well as the land in question.39. now i shall take up the applications separately having regard to their respective case made out in the petition irrespective of the above argument advanced by the learned advocate on behalf of all the petitioners.40. in the application of mr. mitra's clients it has been stated that they have been in possession and occupation as sub-tenants/thika tenants. however, in the affidavit in reply new case has been made out as occupant on the bustee land. these two cases are not alternatives. in fact, under the law as i have discussed such alternative case cannot run side by side, one is conflicting with another. it is significant to mention that some of the applicants, viz., kailash prasad khandelwal, iswar dayal sharma, biswanath paul, rajendra yadav, bhikari roy, shanti devi mall, harinath singh, pannalal singh, hooblal yadav, shew shankar singh, tilak dhari singh, munni devi singh and munni devi mall previously came to this court and took up the plea of adverse possession and their contentions have been rejected by the appeal court. at that point of time those petitioners could have taken the plea of thika tenancy and/or sub-tenancy as on that date such plea was available. so apart from their dishonesty and act of falsehood in this matter their contentions are hit by the principle of constructive res judicata even when appeal was heard before the division bench in 1998 the aforesaid persons could have taken the plea of occupants of bustee land because by that time the amendment had taken effect retrospectively. point of law can be taken up at any stage even right up the appellate court but this was not taken. so, the plea of occupant in bustee land is also hit by the principle of constructive res judicata as far as the aforesaid personsare concerned. the principle of res judicata is applicable under explanation vii of section 11 of civil procedure code which says as follows:-'section 11. explanation vii.--the provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.'41. factually i do not find the state of west bengal has made any claim in relation to the said property as being vested one. the thika controller even has not accepted the rent of its own and did not issue any challan until a contempt proceeding was taken out. the state of west bengal has notice of this proceeding through thika controller and it has not come forward to make any claim. i do not find under the aforesaid act or rules framed thereunder any step consequent upon vesting having been taken.42. therefore, i hold this application filed by mr. mitra's clients in g.a. no. 1751 of 1998 is frivolous and the same is hereby dismissed with costs assessed at 300 gms to be paid to the decree holder.g.a. no. 3192 of 1999.in this application even going by the averment made in the petition and supplementary affidavit this needs to be summarily dismissed as inconsistent and contradictory plea having been taken--one as a sub-tenant in the petition and thika tenant in supplementary affidavit. even their case of subtenancy has been rejected by dismissing their title suit being no. 489 of 1999 by the learned city civil court. this application stands dismissed with costs assessed at 100 gms to be paid to the decree holder.g.a. no. 3226 of 1999.this application should also be dismissed as the plea of sub-tenancy and thika tenancy having been taken and this inconsistent plea on the face of it cannot be entertained by any court of law. it stands dismissed with costs assessed at 100 gms. to be paid to the decree holder.g.a. no. 3273 of 1999.the applicant in this application has taken the same plea as that of g.a. no. 1751 of 1998. moreover, i find there is no single scrap of document to substantiate their alleged plea. as such this application stands dismissed with costs assessed at 100 gms. to be paid to the decree holder.g.a. no. 3541 of 1999.this application has taken plea of thika tenancy, adverse possession and sub-tenancy under manbhawati devi. the fate of this application is also dismissal with costs assessed at 100 gms. to be paid to the decree holder.g.a. no. 3829 of 1999.this application has taken a plea of bharatia alleged to be created by manbhawati devi who was alleged to be a thika tenant. such relationship of bharatia was created oh 16th august, 1990 when the execution proceeding is pending. so, this is a frivolous plea. so, this application is dismissed with costs assessed at 100 gms. to be paid to the decree holder.g.a. no. 3782 of 1999.in this case the petitioner is claiming to be tenant/bharatia in respect of one shop room under manbhawati devi who was alleged to be a thika tenant at premises no. 7, singhi dutta lane. in support of her claim she has annexed few rent receipts and an agreement dated 16th august, 1990.the case made out by the petitioner in this application on the face of it is not tenable inasmuch as this alleged creation of tenancy right by manbhawati devi is a subsequent event after passing the eviction decree. manbhawatt devi was claiming right through khemani on the strength of the declaratory decree and khemani in his turn has right in terms of lease which determined long ago and followed by eviction decree. this creation of tenancy without consent, permission and knowledge of the decree holder is wholly invalid and illegal. subsequent transaction by any person after passing of eviction decree is absolutely null and void.therefore, this application is dismissed with costs assessed at 100 gms. to be paid to the decree holder.the application being tender no. 1469 of 1999 has taken up a plea of thika tenancy, adverse possession and sub-tenancy and this inconsistent plea cannot be entertained and the same is hereby rejected with costs assessed at 100 gms. to be paid to the decree holder.this court has previously passed an order giving police help, but the stay was granted for operation of the order. under such circumstances the stay is vacated and the concerned police officials is directed to carry out my earlier order.upon deposit of costs assessed at 300 gms. in terms of my judgment, to be made by the applicants in g.a. no. 1751 of 1998 and by the other applicants @ 100 gms. with their respective advocates-on-record the operation of this judgment and order will remain stayed for a period of ten days from date. respective advocates-on-record will hold it until further order without any lien or attachment, operation of this judgment will remain stayed for seven days.it is made clear that the deposit as above is a condition precedent.all parties concerned are to act on a xerox signed copy of this judgment and order on the undertaking that they will apply for certified copy of the judgment.43. application dismissed