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Mohd. Shaib v. Sri Vaishnav Das - CIVIL REVISION No. 87 of 1992 [2007] RD-AH 14412 (23 August 2007)


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Court No.23

Civil Revision No.85 of 1992

Mohd. Shoaib Vs. Sri Vaishnav Das and others


Civil Revision No.87 of 1992

Mohd. Shoaib Vs. Sri Vaishnav Das and others


Civil Revision No.88 of 1992

Mohd. Shoaib Vs. Sri Vaishnav Das and others

Hon'ble S.U. Khan, J.

In spite of sufficient service through publication, no one has appeared on behalf of the six legal representatives of Respondent No.1, i.e. Respondent No.1/1 to respondent No.1/6. (Substitution applications have been allowed today.) Copy of newspaper has been filed in the first revision. Even though in the newspaper only revision No.85 of 1992 was mentioned, however all revisions are directed against the same order, same points are involved in all the revisions and parties are also same in all the revisions. Service is, therefore, held sufficient in all the revisions.

The case has got a checkered history, however in the impugned order, history of litigation has been traced in detail and with clarity. Original respondent No.1 Vaishnav Das in the revisions obtained an agreement for sale of property in dispute, which is a shop belonging to the applicant, from the parents of the applicant as at that time, applicant was minor. Agreement was executed in 1968. It appears that under the agreement, possession was also given to Vaishnav Das, who thereafter let out the shop in dispute to respondents No.2 & 3, Labh Singh & Surjeet Singh. Thereafter, Vaishnav Das filed suit for specific performance against the applicant. The suit was dismissed. Appeal was allowed. However, in the second appeal No.1849 of 1974. Suit for specific performance was dismissed. The said second appeal was allowed on 30.01.1980. In the year 1981, Vaishnav Das filed eviction suit against his tenants, being S.C.C. suit No.14/81, which was decreed on 18.10.1985. Against the said judgment and decree, tenants filed J.S.C.C. revision No.700/85, in this High Court. (The said revision was pending, when impugned order was passed on 23.10.1991.) In the revision, dispossession of the tenants was stayed. In the year 1987, the tenants delivered possession to the applicant Mohd. Shoaib. Thereafter,  Vaishnav Das filed execution application on the ground that in S.C.C. Revision No.700 of 1985, a conditional stay order had been granted by the High Court and condition had not been complied with. Execution case was registered as execution case No.09 of 1987. In the said execution case, applicant filed application stating therein that he was in possession.

Meanwhile, applicant had also filed O.S. No.298 of 1989 against  Vaishnav Das seeking to restrain him from interfering in his possession. The suit was decreed ex parte. Restoration application was also rejected. The court below/ Ist A.D.J., Gorakhpur, through impugned order dated 23.10.1991 passed in Misc. Case No.45 of 1991 and Misc. Case No.20/1987 and in execution case No.09 of 1987, held that execution should remain stayed, by virtue of judgment and decree passed in O.S. No.298 of 1989, Mohd. Shoaib Vs. Vaishnav Das. The view of learned Ist A.D.J., Gorakhpur was that in case ex parte decree passed in the suit of 1989 was set aside, then execution could revive and proceed further. (The said order has been challenged through these revisions).

Firstly, there was no need to keep execution pending. The Executing Court could, after dismissing the execution, permit the decree holder to file fresh execution application, in case judgment and decree in O.S. No.298 of 1989 was set aside. The learned counsel for the applicant states that, at present, no sort of any restoration application is pending for setting aside the ex parte decree in O.S. No.298 of 1989.

However, in my opinion, there is another point, on which these revisions deserve to be allowed. As held in Vashu Deo Vs. Bal Kishan, AIR 2002 SC 569, tenants can very well attorn in favour of paramount title holder, if the landlord, who let out the building, has got no defence to the title of the paramount title holder and title has finally been decided by the Court. Para 12 of the said authority is quoted below:-

"12. To constitute eviction by title paramount so as to discharge the obligation of the tenant to put his lessor into possession of the leased premises three conditions must be satisfied : (i) the party evicting must have a good and present title to the property; (ii) the tenant must have quitted or directly attorned to the paramount title holder against his will; (iii) either the landlord must be willing or be a consenting party to such direct attornment by his tenant to the paramount title holder or there must be an event, such as a change in law or passing of decree by a competent Court, which would dispense with the need of consent or willingness on the part of the landlord and so bind him as would enable the tenant handing over possession or attorning in favour of the paramount title holder directly; or, in other words, the paramount title holder must be armed with such legal process for eviction as cannot be lawfully resisted. The burden of raising such a plea and substantiating the same, so as to make out a clear case of eviction by paramount title holder, lies on the party relying on such defence."

In the instant case, the title of applicant Mohd. Shoaib has finally been decided by the High Court in the second appeal on 30.01.1980, hence tenants were fully justified in attorning in favour of the applicant paramount title holder. The tenants indisputedly attorned in his favour and thereafter delivered possession to him. There is, therefore,  absolutely no question of eviction of applicant in execution of decree obtained by Vaishnav Das against his tenants. In my opinion, even independently of the decree passed in O.S. No.298 of 1989, the execution was liable to be dismissed.

Accordingly, all the three revisions are allowed. Impugned order is set aside in so far as it is against the applicant and it is directed that no further proceedings shall be taken in execution case No.09 of 1987, Vaishnav Das Vs. Labh Singh and others pending before Ist A.D.J., Gorakhpur.




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