Full Judgment Text
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PETITIONER:
RAM CHANDRA VERMA
Vs.
RESPONDENT:
SHRI JAGAT SINGH SINGHI & ORS.
DATE OF JUDGMENT: 30/01/1996
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
AHMAD SAGHIR S. (J)
G.B. PATTANAIK (J)
CITATION:
1996 AIR 1809 JT 1996 (2) 494
1996 SCALE (2)314
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
Though notice has been sent on second occasion to
respondent No.3 on May 24, 1994, so far acknowledgement
has not come back. Therefore, notice on 3rd respondent
must be deemed to have been served. Respondents 1 & 2
are represented by Mr. G.S. Chatterjee.
Leave granted.
The respondents filed Suit No.19/75 on May 19,
1975 for eviction of the tenant Harkesh Rai Agarwal on
three grounds, namely, default, sub-letting and
personal requirement. The suit was dismissed on August
25, 1975. Again another suit was instituted on
September 25, 1975 for the same grounds. The suit was
again dismissed. Pending appeal, Harkesh Rai and the
respondent have compromised the matter. By compromise
decree dated November 26, 1981, Harkesh Rai agreed to
surrender one room now in possession of the appellant.
When execution was sought to be taken and the appellant
resisted the execution, an application under Order 21
Rule 97 of CPC was filed to remove the obstruction
which was ordered by the Executing Court. On appeal,
the High Court by order dated August 16, 1983 in
F.A.1/91 dismissed the appeal. Thus this appeal by
special leave.
The question is: whether the appellant is bound by
the compromise decree entered into by Harkesh Rai
Agarwal and the respondents. It is settled law that
unless the conditions for eviction are proved, the
decree for eviction on compromise is a nullity. That
apart, the property belongs to four persons and three
brothers made an admission prior to partition that the
appellant is in possession of a room admeasuring 15’ x
30’ as tenant and admittedly it fell to the share of
Lunkaran Singhi. In view of those admissions made by
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the co-owners who have got joint interest and made
their admissions against their interest, the admissions
bind all the co-owners. In view of that admission, the
necessary conclusion is this that the appellant is
independently in possession of the premises admeasuring
15’ x 30’ in his own right as a tenant.
In the compromise decree, ultimately, the High
Court granted possession of the premises in occupation
of the appellant. The appellant having been found in
possession, he is entitled to obstruct execution
defending his his illegal dispossession in execution
proceedings and he is also independently entitled to
file application under Order 21 Rule 97 claiming his
possession. In view of the fact that he was found to be
in possession, the finding recorded by the Executing
Court as upheld by the High Court that he is a
licensee on behalf of Harkesh Rai Agarwal is clearly
illegal. We, therefore, hold that the appellant cannot
be ejected from the premises in his possession except
in accordance with law. As regards the execution of the
compromise decree is concerned, it would be open to the
respondent to proceed against Harkesh Rai Agarwal in
accordance with law.
The appeal is accordingly allowed. No costs.