IN THE HIGH COURT OF JHARKHAND AT RANCHI.
W.P. (C) No. 1960 of 2008
...
Navin Kumar Modi ... ... Petitioner
-V e r s u s-
Shekhar Kumar Modi & Others ... Respondents.
...
CORAM: - HON'BLE MR. JUSTICE D.G.R. PATNAIK.
...
For the Petitioner : - M/s. A. K. Das & P. Poddar.
For the Respondents : - M/s. P. K. Prasad, Ayush Aditya.
...
C.A.V. On :- 27/05/2009 Delivered On: - 26/06/2009
...
6/ 26.06.2009
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.
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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
3 [W.P. (C) NO. 1960 Of 2008]
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. 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.
(D.G.R. Patnaik, J.)
APK