Taj Bano vs Dayanat Hussain on 18 August, 2011

Patna High Court – Orders
Taj Bano vs Dayanat Hussain on 18 August, 2011
              IN THE HIGH COURT OF JUDICATURE AT PATNA
                            SA No.265 of 2007
         Taj Bano, Wife of Late Zahiruddin Khan, D/o Late Khalafat Hussain,
         R/o Mundichak, P.S.-Kotwali, District-Bhagalpur at present residing at
         Amjad Ali Lane, Barehpura, P.O.-Bhagalpur, P.S.-Kotwali now
         Ishakchak, District-Bhagalpur.--Defendant-Respondent-Appellant.
                         Versus
         Dayanat Hussain, Son of Late D/o Late Khalafat Hussain, R/o Amjad
         Ali Lane, Barehpura, P.O.-Bhagalpur, P.S.-Kotwali now Ishakchak,
         District-Bhagalpur--------------------Plaintiff-Appellant-Respondent
                                  -----------

15. 18.08.2011 I.A.No.2703 of 2011.

This Interlocutory application has been filed by the

appellant praying for stay of further proceeding in Title Execution

Case No. 01 of 2009 pending before Sub Judge VII, Bhagalpur

during the pendency of this appeal.

The Defendant is the appellant in this appeal and has

filed Title Suit No. 106 of 1999 for declaration of title and

recovery of possession with respect to the suit premises detailed

in Schedule I of the plaint. The suit was dismissed on merits.

However the appellate court has reversed the judgment and decree

and allowed the appeal with a direction to the defendant to vacate

the suit premises and hand over vacant possession to the plaintiff.

The Execution Case No. 01 of 2009 has been filed by the plaintiff

seeking delivery of possession by dispossessing the defendant

appellant from the suit premises through the process of the Court.
2

In the Interlocutory application, the appellant has stated

that she is residing and occupying the premises as residential

house and dispossession will cause irreparable loss and injury to

her during the pendency of this appeal. From the statement and

affidavit made in the Interlocutory application, it appears that the

appellant is a 70 years old lady. By filing counter affidavit the

sole respondent, contesting the claim of the appellant, has asserted

that the appellant is not residing in the suit premises rather she

has inducted Md. Kamal as tenant at the monthly rent of Rs.

500/- and as such she has no right to resist the delivery of

possession .The appellant has filed a reply to the said counter

affidavit and has stated that the Md. Kamal and his wife are living

in the suit premises at her instance for the purpose to look after

the appellant due to her old age and they have never been inducted

as tenant by the appellant. An affidavit sworn by Md.Kamal has

also been annexed with the reply in support of this averment.

After considering the submissions, facts and

circumstances of this case, it is clear that this appeal has been

admitted for hearing by order dated 22.11.2010. There is no

dispute that the suit premises is a residential house and the

plaintiff has sought recovery of possession by dispossessing the

appellant(defendant) who is a seventy years old lady claiming to
3

reside therein. As a result this application is allowed and the

further proceeding of Execution Case No. 01 of 2009 of the Court

of Sub Judge VII, Bhagalpur is stayed during the pendency of this

appeal.

Nitesh                             (V.Nath, J.)
 

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