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Shanker Lal Jakodia Vs. Ram Kishan Baldeo Prasad and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberEx. Second Appeal No. 3288 of 1968
Judge
Reported inAIR1976All250
ActsCode of Civil Procedure (CPC) , 1908 - Sections 144; Transfer of Property Act, 1882 - Sections 52
AppellantShanker Lal Jakodia
RespondentRam Kishan Baldeo Prasad and anr.
Appellant AdvocateV.D. Singh, Adv.
Respondent AdvocateT.P. Asthana, ;Arvind Kumar and ;S.N. Varma, Advs.
DispositionAppeal allowed
Excerpt:
.....of suit third person put in as second tenant by landlord - suit decided in favour of first tenant - application for restoration of possession by first tenant - held, second tenant representative of landlord and transfer to second tenant hit by principle of lis pendens. - - a suit for the appellant's eviction was filed which was decreed by the trial court but was dismissed by the lower appellate court a second appeal in the case also failed. the second appeal in the case having failed, shanker lal jakodia, the appellant in this appeal, filed an application for restitution of possession of the premises. the appeal against that order also failed and the lower appellate court took the same view and refused restitution on the ground that the second respondent occupied the premises..........air 1961 bom 288, it was held that the tenant inducted pendente lite was liable to be evicted in restitution proceedings. in management of mohan rice mill v. hazarika, air 1957 assam 111, it was held that a transferee pendente lite is a representative of the transferor and order for delivery of possession can be passed against him even if he was not a party to the restitution proceedings. it seems to me that the lease in favour of respondent no. 2 during the pendency of appeal in the earlier proceedings did not give him any independent right in the property. he was a respresentative of the landlord and as such bound by the decree passed against him. he was liable to restore possession to the appellant in the proceedings under section 144 c. p. c.4. learned counsel for the respondent.....
Judgment:

Gopi Nath, J.

1. This is an Execution Second Appeal against the order of the Civil and Sessions Judge, Kanpur dated 23-8-1968 affirming the order of the City Munsif Kanpur dismissing an application under Section 144, Civil Procedure Code, Sri Shanker Lal Jakodia, the appellant was a tenant of premises No. 77/14 Kulee Bazar, Kanpur. M/s. Ram Kishan Baldeo Prasad the respondent was the landlord. A suit for the appellant's eviction was filed which was decreed by the trial court but was dismissed by the lower appellate Court A second appeal in the case also failed. The result was that the appellant under the decree of the lower appellate court was entitled to regain possession of the premises in dispute as a tenant. It appears that during the proceedings in the court below Sri Lalloo presad the second respondent was inducted by M/s. Ram Kishan Baldeo Prasad, the landlord as a tenant. The second appeal in the case having failed, Shanker Lal Jakodia, the appellant in this appeal, filed an application for restitution of possession of the premises. By the application it was prayed that the appellant be restored to possession and Lalloo Prasad the second respondent inducted as a tenant be ejected therefrom. The application was contested by the landlord as also by the second respondent the inducted tenant on the ground that the second respondent was no party to the earlier decree and hence he was not bound to vacate the premises, he having occupied the same in his own right as a tenant. This objection found favour with the trial court. It rejected the application under Section 144 C. P. C. on the ground that the second respondent was not bound by the decree and was not liable to restore possession to the appellant. The appeal against that order also failed and the lower appellate court took the same view and refused restitution on the ground that the second respondent occupied the premises as a tenant and was in possession in his own right on the basis of a fresh lease executed in his favour.It was held by the court below that he was not a party to the decree passed in the earlier suit and was as such not liable to be dispossessed in execution thereof.

2. It was contended on behalf of the appellant that the second respondent was only a representative of the first respondent, the landlord, and the transfer having been made during the pendency of the appeal, it was hit by the principle of lis pendens. The appellant was accordingly entitled to restoration of possession by his ejectment.

3. I find force in this contention. In Narayan Laxman v. Vishnu Waman, AIR 1957 Bom 117 it was held that transferee of a property during the pendency of an appeal was liable to restore possession under Section 144, C. P. C. In Manik Chand v. Gangadhar Shanker, AIR 1961 Bom 288, it was held that the tenant inducted pendente lite was liable to be evicted in restitution proceedings. In Management of Mohan Rice Mill v. Hazarika, AIR 1957 Assam 111, it was held that a transferee pendente lite is a representative of the transferor and order for delivery of possession can be passed against him even if he was not a party to the restitution proceedings. It seems to me that the lease in favour of respondent No. 2 during the pendency of appeal in the earlier proceedings did not give him any independent right in the property. He was a respresentative of the landlord and as such bound by the decree passed against him. He was liable to restore possession to the appellant in the proceedings under Section 144 C. P. C.

4. Learned Counsel for the respondent urged that the application was under Section 151 C. P. C. and not under Section 144, C. P. C. It is not so. The appellant by his application dated 20th of December, 1967 prayed for restitution of possession under Section 144, C. P. C. This was followed by another application dated 5-10-1968. It again prayed for relief under Section 144, C. P. C. It appears that in an application filed by counsel for the appellant on December 6, 1967, a mention was made of Section 151, C. P. C On the basis of this application learned counsel for the respondent urged that the proceedings were under Section 151, Civil Procedure Code. The submission is fallacious. The proceedings were clearly initiated under Section 144, C. P. C. and Section 151, C. P. C. was mentioned in the application dated 6th December, 1967 by way of abundant caution with a view toavoiding any objection, as the second respondent was not a party in the earlier decree. The appellant was entitled to claim restitution against the respondents under Section 144, Civil Procedure Code.

5. The appeal accordingly succeeds and is allowed. The order of the court below dated 23-8-1968 is set aside and the appellant's application for restitution under Section 144, Civil Procedure Code is allowed.


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