Noorul Hoda v. Dr.B.N.Pd.

The plaintiff is the petitioner who has filed a title suit for eviction of defendant-respondent no.1. According to the plaintiff, he had inducted defendant no.1 as a tenant in the suit premises. When they failed to pay the rent from February 2005, a suit for eviction being Eviction Suit No. 7 of 2005 was filed. In this case it appears that the property in question was purchased by 2 Patna High Court CWJC No.694 of 2012 (9) dt.23-04-2012 one Wasir Ahmad on 13th December 1954 and out of that property, half share was sold to Riyazul Hassan on 9th February

1955. The present petitioner is son of Riyazul Hassan who has brought the eviction suit whereas Wasir Ahmad had one son Ataur Rahman who sold the property to the wife of present defendant- respondent no.1 who is facing Eviction Suit No. 7 of 2005. As it appears from the record that the present petitioner Noorul Hoda has filed T.S.No. 8 of 1983 for declaration of title whereas Ataur Rahman has filed a suit against the present petitioner vide T.S.No. 58 of 1983 for partition, whereas Sulekha Devi, wife of present respondent filed T.S. No. 251 of 2005 for declaration of title and confirmation of possession on the basis of sale-deed. It appears that the present suit has been filed in 2005 and altogether four cases, three related to title and possession and one related to eviction are pending in the court below. An application was filed in the court below making a prayer that looking to the nature of dispute, the present eviction suit be stayed. The court below after deliberating facts has come to a finding that the disputed plot has been purchased by the wife of the present respondent from Ataur Rahman knowing fully well that the title suit is pending between the parties. As the dispute with regard to title is pending and that portion has been claimed by the wife of present defendant being purchaser of suit property and for the ends of justice, the court 3 Patna High Court CWJC No.694 of 2012 (9) dt.23-04-2012 below has stayed the eviction suit till the disposal of the T.S. No. 8 of 1983 and T.S. No. 58 of 1983 on the strength of Section 10 C.P.C. In the present suit and in the earlier cases, parties are quite different whereas the present respondent is claiming the title through his wife and for that he has already filed title suit which is also pending before the court below. The present case is eviction suit, title will not be decided in between parties whereas other cases are related to title suit or Partition Suit In the present case petitioner is claiming that the defendant is the tenant and has refused to pay rent after February 2005. The judgment of other two cases will not operate as res judicata to the eviction suit because eviction suit is on quite different point whereas title suit is on different point and parties in the eviction suit are quite different. These issues have come for consideration on different occasions and for that relevant judgment is reported in 1987 PLJR 724 (Dr.N.P.Tripathi v. Smt. Dayamati Devi) where the court has refused to stay the proceeding in suit for specific performance of contract was filed and vis-à-vis there was a eviction suit and a prayer was made for stay of eviction suit till the pendency of the suit where it was held that suit for specific performance of contract is quite different matter. This Court has relied on different judgments and ultimately held that the impugned order could not 4 Patna High Court CWJC No.694 of 2012 (9) dt.23-04-2012 survive and quashed the same. This Court has given the similar view in AIR 1994 Pat. 76 Sri Ram Tiwari Vs. Bholi Devi, AIR 1973 Pat. 196, M/s Fulchand Motilal v. Manhar Lall), AIR 1984 Pat. 161 (Anant Ram v. Mahesh Prasad), AIR 1954 Pat. 314 (Nunu Singh v. Muni Nath Singh) and AIR 1989 Orissa 154 (Lachman Nepak v. Badankayalu Shama. This case is related to eviction suit, issues are on different matter whereas in the title suit, issues are quite different. The decision of eviction suit vis-à-vis title suit will not operate res judicata against each other cases and, as such, the order passed by the court below is not sustainable in law. One fact has been brought before this Court that this Court has passed an orders in C.W.J.C.No. 17313 of 2010 and C.W.J.C.No. 17641 of 2010. This Court vide order dated 5.5.2011 in C.W.J.C.No. 17313 of 2010 has passed the order as follows: “The trial court is directed to reconsider application of petitioners on merit after giving opportunity of hearing along with Title Suit No. 08 of 1983, Partition Suit No. 58 of 1983, Title Suit No. 251 of 2005 and Eviction Suit No. 07 of 2005 within eight months without giving unnecessary adjournments to the parties.” and in C.W.J.C No. 17641 of 2010 this Court passed the order as follows: 5 Patna High Court CWJC No.694 of 2012 (9) dt.23-04-2012 “The trial court is directed to reconsider application of the petitioner on merit, after giving an opportunity of hearing to all the parties within ten days from the date of production of certified copy of this order”. In pursuance of order passed in C.W.J.C.No. 17313 of 2010 the learned District Judge in Misc. Case No. 32 of 2011 has transferred the eviction suit No. 7/2005 pending in the court of Sub-Judge-V, Muzaffarpur where already title suit No. 8 of 1983 and Title Suit No. 58/1993 are pending. In this view of order passed by this Court, it appears the court has passed the order that all the cases should be heard by one court to avoid conflict of judgment. It is desirable that the court below would follow the order aforesaid in its true spirit. In view of the opinion as aforesaid, this petition is allowed and the order impugned is set aside with aforesaid observation. Let the copy of the orders passed in C.W.J.C.No. 17313 of 2010 and C.W.J.C.No. 17641 of 2010 both dated 5th May 2010 be kept on the record. Jay/- (Shivaji Pandey, J)