IN THE HIGH COURT OF JUDICATURE AT PATNA
FA No.265 of 2008
KESHO PRASAD RAI & ORS
Versus
RAMJI SINGH & ORS
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ORDER
05. 24.09.2010. Heard the learned counsels for the parties on
the Interlocutory Application No.1112 of 2009.
(2) This Interlocutory application has been filed
by the appellant praying therein to stay further
proceeding in the Court below in title Suit No.97 of 1988
pending in the Court of Civil Judge, Sr. Division, 2nd Court
at Buxar.
(3) It appears that the plaintiff-respondent
No.1, Ramji Singh, filed the aforesaid suit for specific
performance of contract and also for confirmation of
possession over the suit house and in the alternative for
recovery of possession. According to the plaintiff, he was
tenant in the suit house and was conducting his business.
The defendant No.1, Bishwambhar Pd. Aggrawal, in the
capacity of Karta of the joint family approached the
defendant to sell the suit house as defendant No.1 had to
perform marriage of his daughter and was in need of
money. Consideration was fixed at Rs.4,10,000/-. The
contract was finalized on 24.08.1987. Advance of
Rs.1,14,000/- was paid to the defendant No.1 on
12.09.1987 and deed of agreement was prepared and
signed by the parties. The appellants are the subsequent
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purchaser with notice of this agreement. The appellants
got executed 4 sale deeds.
(4) The original defendant appeared and filed
contesting written statement. However, he died and then
the legal representatives were substituted. The son of
the original defendant No.1 who was original defendant
No.4 supported the case of the plaintiff. After trial, the
learned Court below decreed the plaintiff-respondent suit.
Now, according to the decree, the learned court below is
proceeding ahead to execute the decree.
(5) The learned counsel for the appellant
submitted that if further proceeding is not stayed then
the appellant shall suffer serious loss and irreparable
injury because the appellants are in possession of the
property. To this submission, the learned counsel
appearing on behalf of the respondent submitted that
there is no question of possession of the appellant
because admittedly, the plaintiff-respondent No.1 was
the tenant in the suit house from the very beginning.
And, therefore, he filed suit for specific performance of
contract and also confirmation of possession. In the
alternative, he prayed for recovery of possession.
(6) In view of the above submission, it appears
that the appellants are claiming to be in possession
whereas the plaintiff-respondent No.1 is also claiming to
be in possession. The learned counsel for the
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respondent submitted that since plaintiff is in possession
so only sale deed is to be executed. The learned trial
Court also found possession of plaintiff no, no question of
dispossessing the appellant arises.
(7) From perusal of the impugned Judgment, it
appears that the plaintiff case itself was that he was a
tenant in the suit premises and the trial Court also found
possession of plaintiff-respondent. At this stage, there is
no material to show that when the plaintiff was disposed
by what means and by whom. However, this question
will be decided finally at the time of hearing of the Appeal
itself. At present, it will suffice, if status quo regarding
possession is maintained during the pendency of this
Appeal. It is clarified that the lower Court shall proceed
to execute the decree by completing all other formalities.
In other words, further proceeding is not stayed. The
earlier order passed by this Court dated 13.07.2010
accordingly stands modified.
(8) Accordingly, this I.A. No. 1112 of 2009 is
disposed of.
( Mungeshwar Sahoo, J.)
Sanjeev/