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.
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
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
Nitesh (V.Nath, J.)