SOUMEN SEN,J. - (1.) Supplementary affidavit filed in court today be retained with the record.
(2.) One Sri Babobehari Bera filed an eviction suit being Title Suit No. 79 of 1989 against Sri Mohanlal Ghosh for eviction. In the said proceeding, a decree of eviction was passed on 27th September, 2007 in favour of the plaintiff. Sri Bera, thereafter put the decree into execution which has resulted in an application being filed under Section 47 of the Civil Procedure Code by Mohanlal Ghosh claiming that in the suit schedule property he had become the tenant under his wife on the basis that the his wife Smt. Rekha Ghosh under a registered deed of gift registered on 22.11.1992, acquired 1/12th share of Sri Kuntal who is one of the co-owners in respect of the suit premises. It appears from record that consequent upon execution of the said deed of gift Rekha tried to implead herself in the suit for eviction, namely, Title Suit No. 79 of 89 which was initially disallowed by the trial court and such order was upheld on 9th of April, 2001 by a Single Judge of this Hon'ble Court in Civil Revision (No. 629 of 2001) preferred by Smt Rekha Ghosh. The relevant observations of the Hon'ble Single Judge are reproduced herein below:- " In the suit the only question that will be decided by the learned Trial Judge is whether the defendant was a tenant under the plaintiff and whether there has been valid service of notice under Section 106 of the Transfer of Property Act. In such a suit there is no scope of adjudication of a different issue whether the applicant under Order 1 Rule 10 of the Code has right, title or interest in the subject matter of the property. The present petitioner has already filed a suit for partition against plaintiff and in that suit there is an order of status quo till the disposal of the said suit. Therefore, the apprehension of the petitioner that in execution of the decree passed in this suit, she may be dispossessed, is absolutely baseless. As pointed out by the Apex Court in the case of Ramesh Harachand Kundanmal v. Municipal Corporation of Greater Bombay, reported in 1992(2) SCC 524 , the object of Order 1 Rule 10 of the Code is to encourage adjudication of an issue which is foreign to the suit. Mr. Ali further place strong reliance upon the decision of the Madras High Court in the case of R. Tulshi v. Hamidabai and Ors. Reported in A.I.R. 1972 Madras page 61 . I am afraid the said decision is no longer a good law in view of the decision of the Apex Court in the case of Ramesh Harachand Kundanmal (Supra). I thus, find no reason to interfere with the order passed by the learned Trial Judge. The Revisional application is thus devoid of any substance and is dismissed."
(3.) It is an admitted fact Smt. Rekha Ghosh was not allowed to be impleaded in the category as a plaintiff or a defendant and the decree passed in the said suit is binding on Mohanlal Ghosh. The partition suit was pending. However, the pendency of the partition suit can not give any right to Mohanlal Ghosh or could create any right in his favour to resist the said decree.;