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Patna High Court

Baijnath SahversusKedar Prasad Khandelwal and Ors

Decided
Disposal
DISPOSED

Holding

The High Court dismissed the petition to set aside the lower court's order, holding that the execution was already satisfied and the tenant finding cannot be disturbed.

Summary

The petitioner, Baijnath Sah, filed a petition seeking to set aside a District Judge's order that had held him to be a tenant of suit premises and stayed execution of a decree in Title Suit No. 138 of 1987. The lower court had arrived at this finding after dismissing the petitioner's earlier miscellaneous appeals and execution proceedings. The petitioner argued that the tenant finding was unwarranted, the decree had already been satisfied, and the observation allowing eviction under the Bihar Building Rent Control Act conferred no right. The High Court examined whether the order could be set aside given the execution was already satisfied and found no basis to disturb the lower court's decision. Consequently, the application to set aside the order was dismissed, leaving the earlier order intact.

Issues considered

  • Whether the District Judge's order finding the petitioner as a tenant and staying execution can be set aside.
  • Whether the execution of the decree in Title Suit No. 138 of 1987 is already satisfied, rendering a stay unnecessary.
  • Whether the observation permitting eviction under the Bihar Building Rent Control Act creates any enforceable right.

Legislation cited

Subjects

  • tenant
  • eviction
  • execution of decree
  • stay of execution
  • Bihar Building Rent Control Act
  • Transfer of Property Act
  • miscellaneous appeal
  • title suit

Judgment

                      IN THE HIGH COURT OF JUDICATURE AT PATNA
                        CIVIL MISCELLANEOUS JURISDICTION No.1767 of 2017
                  ======================================================
                  Baijnath Sah Son of Late Jangali Sah, resident of Mohalla Shamsherganj near
                  Ganesh Mandir, P.S. Town, District Darbhanga.

                                                                            ... ... Petitioner/s
                                                    Versus
            1.    Kedar Prasad Khandelwal and Ors
            2.    Hardwar Prasad Khandelwal, Both resident of Mohalla Shamsherganj P.S.
                  Town, District Darbhanga.
            3.    Smt. Chandralekha Singh, Wife of Late Maheshwar Prasad Singh, resident
                  of Mohalla Shamsherganj, P.S. Town, District- Darbhanga.
            4.    Jainandan Prasad, Son of Late Maksudan Prasad.
            5.    Baidyanath Prasad @ Lala, Son of Late Rajendra Prasad.
            6.    Shyam Prasad, Son of Late Shibnandan Prasad.
            7.    Ashok Kumar, Son of Late Shibnandan Prasad.
            8.    Ram Babu Prasad, Son of Late Shivanand Prasad.
            9.    Murli Prasad, Son of Late Baldeo Prasad.
            10. Mohan Prasad, Son of Late Baldeo Prasad. All resident of Mohalla
                Barabazar Pargana Rampatti, P.S. Madhubani, District Madhubani. Note-
                Raghunandan Prasad Khandelwal, Chhatto Devi and Munna Prasad died as
                such not made party.

                                                            ... ... Respondent/s
                  ======================================================
                  Appearance :
                  For the Petitioner/s   :     Mr. Nilesh Kumar
                  For the Respondent/s   :     Mr. Subodh Kumar Sinha
                  ======================================================
                  CORAM: HONOURABLE MR. JUSTICE S. B. PD. SINGH
                                        ORAL ORDER

13   10-02-2026                 The instant application has been filed for setting aside

                    the order dated 17th of March, 2017 passed by learned District

                    Judge, Darbhanga in Misc. Appeal No. 14 of 2016 by which he

                    has allowed the appeal preferred by the petitioner and hold that

                    the petitioner is a tenant of the disputed plot no. 11701 as

                    petitioner never claimed and this point is not answered in favour

                    of the petitioner.
Patna High Court C.Misc. No.1767 of 2017(13) dt.10-02-2026
                                             2/4




                       2. The impugned order has been passed in

          Miscellaneous Appeal No. 14 of 2016. The said appeal arose out

          of the order dated 18.08.2016 passed in Title Execution Case

          No. 07 of 2003, which was under challenge in the aforesaid

          miscellaneous appeal. It is an admitted fact that prior to the

          filing of Execution Case No. 07 of 2003, the present petitioner,

          Baijnath Sah, had instituted a miscellaneous case under Order

          XXI Rule 97 of the Code of Civil Procedure before the learned

          Executing Court, which was dismissed on merits. Aggrieved by

          the said dismissal, the petitioner preferred Miscellaneous Appeal

          No. 10 of 2016 before the learned District Judge, which too was

          dismissed. After dismissal of his case up to the appellate forum,

          the petitioner once again filed a petition before the Executing

          Court seeking stay of the execution proceeding. The said

          petition came to be decided by the impugned order passed in

          Miscellaneous Appeal No. 14 of 2016.

                       3. Learned counsel for the petitioner submits that the

          petitioner has been held to be a tenant of the suit premises,

          which finding is wholly unwarranted and contrary to the

          materials available on record. It is further submitted that while

          adjudicating Point No. 2, as mentioned in paragraph 7 of the

          impugned order, the learned court has recorded the following
Patna High Court C.Misc. No.1767 of 2017(13) dt.10-02-2026
                                             3/4




          findings:-

                                                “7. POINT NO.2:- In view of
                                   above discussions I find that admittedly the
                                   appellant was tenant of the suit premises.
                                   Hence, he should be evicted either under the
                                   provision of T.P. Act or Bihar Building Rent
                                   Control Act. But no such step has been taken
                                   by the Respondents against the petitioner-
                                   appellant under the provision of above said
                                   Act. It is also admitted position by the
                                   Respondent that he has already been taken
                                   vacant possession of the suit premises from
                                   Chandrakala Devi and accordingly the
                                   execution of the decree passed in Title Suit
                                   No. 138 of 1987 is satisfied. Hence, no need
                                   to continue the proceeding. However, on the
                                   basis of factual and legal position of the
                                   execution       proceeding   as   well   as   the
                                   materials available on the record, it is
                                   desirable to stay the execution proceeding
                                   for the protection of the tenant of the suit
                                   premises. However, the Respondent may take
                                   shelter to the procedure for eviction of the
                                   appellant from the suit premises under Bihar
                                   Rent Control Act if so advised. The
                                   impugned order passed by the learned lower
                                   court dated 18.08.2026 is hereby set aside.
                                   The appeal is allowed.”
                       4. Learned counsel for the petitioner further submits
          Patna High Court C.Misc. No.1767 of 2017(13) dt.10-02-2026
                                                       4/4




                    that once the execution of the decree passed in Title Suit No.

                    138 of 1987 was held to be satisfied by the learned Appellate

                    Court, there was no occasion or necessity for the court to make

                    any further observation granting liberty to the respondent to take

                    recourse to the procedure for eviction of the appellant from the

                    suit premises under the BBC Act, if so advised. It is submitted

                    that since the decree passed in Title Suit No. 138 of 1987

                    already stands satisfied, the aforesaid observation neither creates

                    nor confers any right, title, or interest in favour of any party, nor

                    does it prejudice the rights of either side. The learned counsel

                    for the respondent further submits that an eviction suit is

                    presently pending between the parties. Hence, the aforesaid

                    observation shall not have any bearing or adverse effect on the

                    rights and contentions of the parties in the said eviction suit. It

                    shall be decided on its own merit.

                                 5. With the aforesaid, the instant application stands

                    disposed of.



                                                (S. B. Pd. Singh, J)
Ankit Kumar/-

U


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