Sujit Narayan Prasad - (1.) This writ petition has been filed under Articles 226 and 227 of the Constitution of India whereby and whereunder the petitioners being aggrieved with the action of the Sub-Divisional Officer, Dhanbad by virtue of decision taken therein on 09.04.2019 as contained in Memo No.424 by which their shops has been sealed in connection with the execution of decree passed in Title Suit No.273 of 2011 for execution of the decree passed in execution Case No.185 of 2015 has been filed.
(2.) The brief facts of the case and as per the pleading made in the writ petition is that the petitioner No.2 was tenant of the respondent No.7 who is the plaintiff to the Title Suit No.273 of 2011 and has opened a shop for carrying out her business under the name and style of "Jai Maa Shanti General Store" since 1999. The declaratory suit has been filed being Title Suit No.273 of 2011 by one Sanjay Kumar Singh against the Arbind Kumar Singh and five others for declaring the right and title over the suit property pertaining to Mouza No.7 in Khata No.136 appertaining to Plot No.3218 measuring an area 2 Katha or to say 1440 Sq. Ft., the trial court has issued notice to the defendants but the petitioner No.1 who was the defendant No.6 there, but not appeared and thereafter the suit has set ex-parte and ultimately the judgment and decree has been passed on 08.07.2015. Against the decree, first appeal has been filed being First Appeal No.82 of 2015 by the defendant Nos.5 and 6 but the same was dismissed on 09.02.2016, against which, the second appeal has been filed being Second Appeal No.160 of 2016 by the respondent Nos.5 and 6 who were the defendant Nos.1 and 2 which is lying pending before this court. The plaintiff has filed execution case being Execution Case No.185 of 2015 and on being directed by the executing court, the Sub-Divisional Officer, Dhanbad has passed order as contained under Memo No.224 dated 09.04.2019 whereby and whereunder it has been ordered for deputing the Magistrate along with the Police Personnel to ensure compliance of the decree passed in Title Suit No.273 of 2011 against which the present writ petition has been filed.
(3.) It is the case of the petitioners and more particularly the petitioner No.2 Gita Devi that she is having the tenancy over the part of the suit property and therefore, without taking recourse of the tenancy law there cannot be order of eviction. Mr. Pasari, learned counsel for the petitioner has relied upon the judgments rendered by the Hon'ble Apex Court in the case of V. Dhanapal Chettiar Vrs. Yesodai Ammal reported in (1979) 4 SCC 214 and Indian bank Vrs. Nippon Enterprises South and Ors. reported in (2016) 15 SCC 79. ;