Jharkhand High Court
Sarita Tekriwalla vs Srawan Kumar Gutgutia on 21 October, 2024
Author: Subhash Chand
Bench: Subhash Chand
IN THE HIGH COURT OF JHARKHAND AT RANCHI
C.M.P. 108 of 2024
Sarita Tekriwalla, aged about 62 years, wife of Shri Bimal Kumar
Tekriwalla, resident of Gandhi Chowk, T.P. Bose Road, Madhupur, P.O.
Madhupur, P.S. Madhupur, District Deoghar, Jharkhand through its Power of
Attorney Holder, namely, Vaibhav Tekriwal, aged about 30 years, son of
Shri Bimal Kumar Tekriwalla, resident of Jeevan Jyoti Apartment, Flat-402,
4th Floor, DA/5A, Railpukur Road, Baguiati, Rajarhat Gopalpur (M), Desh
Bandhu Nagar, P.O. & P.S. Desh Bandhu Nagar, District North 24
Paraganas, West Bengal ..... ... Petitioner
Versus
1.Srawan Kumar Gutgutia, son of Late Ram Niranjan Gutgutia.
2.Shiv Kumar Gutgutia, son of Late Ram Niranjan Gutgutia.
3.Kunal Gutgutia, son of Shri Sajan Kumar Gutgutia.
Sl. No.1 to 3 are resident of Ramjus Road, Madhupur, P.O. Madhupur and
P.S. Madhupur, District Deoghar
4. Rajendra Kumar Gutgutia, son of Late Lajpat Rai Gutgutia, resident of
Hatia Road, Madhupur, P.O. Madhupur and P.S. Madhupur, District Deoghar,
Jharkhand .... .... Opp. Parties
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CORAM : HON'BLE MR. JUSTICE SUBHASH CHAND
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For the Petitioner : Mr. Ankit Vishal, Advocate
For the O.P. :
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03/21.10.2024 The instant civil miscellaneous petition has been filed on
behalf of the petitioner for quashing the order dated 24th January, 2023
passed by the learned Civil Judge (Sr. Division)-I, Madhupur in Misc. Civil
Application No.96 of 2022 arising out of Execution Case No.20 of 2016
whereby the petition dated 31st March, 2022 filed by the petitioner under
Section 47 of the CPC has been rejected.
2. Learned counsel for the petitioner has submitted that Eviction Suit
No.06 of 2000 was filed in the court of learned Civil Judge (Senior
Division)-IV, Deoghar and same was decreed vide order dated 30th
January, 2015. It is further submitted that the very suit was filed by one of
the co-owner for eviction of the tenant in the property in suit and that very
suit being decreed, the execution proceeding was initiated on behalf of the
plaintiff/decree holder. It is also submitted that in that very suit, the
petitioner was neither arrayed as a plaintiff nor was impleaded as
proforma defendant while the plaintiff was also one of the co-owner of the
very property in suit. As such, the objection under Section 47 CPC which
was rejected by the learned trial court by the impugned order is against
the law.
3. Admittedly, the eviction suit which was filed by the plaintiff against
the tenant which was decreed in the very suit, the relationship of landlord
and tenant was to be adjudicated by the learned trial court and after
adjudication of the relationship of landlord and tenant the ground of
eviction being found, the very suit was decreed. It is also admitted fact
that the petitioner was neither the decree holder nor the judgment debtor
of the eviction suit and his claim is that he is also one of the co-owner of
the property in question against which eviction has been sought by one of
the co-owner/plaintiff. There is a material difference between the landlord
and the owner with regard to the property in question. If there are more
co-owners of any property and any one of the co-owner, who has received
the rent from the tenant or to whom the rent had been paid would be the
landlord. If in a rent eviction suit, the tenant has been evicted and the
plaintiff/landlord has been directed to handover the possession of the
same, the right, title or interest of co-ownership of the petitioner is not
extinguished from the same. If after delivery of the possession to the
decree holder of the property in question any right, title or interest in the
very property of the petitioner being a co-owner is being prejudiced or
adversely affected for the same there is alternate remedy to file
application under Order XXI Rule 97 or 99 of the CPC for the right, title
and interest against the another co-owner; but the very objection under
Section 47 CPC against the impugned decree execution of which is
pending before the learned trial court is not at all maintainable. Thus, the
learned trial court has rightly rejected the application under Section 47
CPC moved on behalf of the petitioner.
4. In view of the above, discussion, I find that learned trial court has
not committed any mistake in rejecting the application of the petitioner
filed under Section 47 CPC.
5. Accordingly, this CMP stands dismissed.
(Subhash Chand, J.)
Rohit/AFR
