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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.