S.N. Bhargava, C.J.This is an appeal against the order of the learned District Judge, Sikkim, dated 5th November 1990, allowing the application of the decree-holders under Order 21, Rule 97 of the Code of Civil Procedure.

2. Civil Suit No. 35 of 1975 was instituted in the Court of the District Judge, Sikkim, on 25-9-1975 by Manmull Singhi for the eviction of his tenant Harkesh Rai Agarwala from "Two rooms in the third floor of the four-storeyed cemented building situated at Lall Market road, Gangtok Bazar" Gangtok. The suit was dismissed by the learned District Judge. The dismissal was challenged in Civil 1st. Appeal No. 1 of 1979 in the High Court. During the pendency of the appeal, compromise was effected between the plaintiff, Manmull Singhi, and the tenant, Shri Harkesh Rai Agarwala. As per the terms and conditions of the compromise, the plaintiff was to get a decree of eviction in respect of the two rooms as shown in the plan in the schedule of the compromise petition. The front room was shown in green colour and the plaintiff, Manmull Singhi, got possession thereof in terms of the compromise. The other room which was described as the back room was shown in red colour. Paragraph 5 of the compromise petition contains an admission of the tenant Harkesh Rai Agrawal that he had allowed and permitted the present appellant Ram Chandra Soni alias Verma to occupy the back room shown in red as a liccncee. In terms of the compromise the appeal was allowed on 26-11-1981 and the suit was decreed on the terms and conditions of the compromise petition so far as it related to the suit. The decree-holder filed Civil Execution Case No. 1 of 1982 praying for possession of this back room shown in red colour, on 12-1 -1982. During the pendency of the execution, Manmull Singhi died and respondent Nos. 1 and 2 are his legal representatives. The appellant, Ram Chandra Verma, resisted the execution. On 20-10-1982, the decree-holder filed an application under Order 21, Rule 97, C.P.C., giving rise to this appeal, on the allegation that the objector-appellant Ram Chandra Verma was resisting or obstructing him in obtaining the possession for which he had no locus standi whatsoever to do. The decree-holder alleged that the appellant had been inducted by the tenant Harkesh Rai Agrawal as a licencee in the year 1974-75 and as such the decree was binding upon the objector. Giving details of the factual aspect, the decree-holder alleged that he Banney Chand Singhi and Lunkaran Singhi were the owners of the four storeyed R.C.C. buildings, on the third floor of which the room in question is situated, and that by virtue of family partition in the year 1973, the portion which was in occupation of the judgment-debtor Harkesh Rai Agrawal fell in the share of the decree-holder, Manmull Singhi, and another portion measuring 30 x 14 in respect of which the objector-appellant Ram Chandra Verma is a tenant fell in the share of Lunkaran Singhi and one other portion occupied by Gopiram Jogendra Prasad fell in the share of Banney Chand Singhi. According to the decree-holder, the room in question was not in the tenancy of the appellant but was in the tenancy of the judgment-debtor Harkesh Rai Agarwal. The appellant, Ram Chandra Verma, filed an objection to the application claiming himself to be the tenant in respect of the disputed room also and alleging that the compromise petition had been filed in collusion of the decree-holder and the judgment-debtor. He has averred that the room in question was not part of the suit premises and that Harkesh Rai Agarwal was a tenant in respect of only one room of which the decree-holder had already got the possession. He claimed to be a tenant in respect of all the rooms which are under his occupation right from the very inception of the tenancy under Manmull Singhi, Banney Chand Singhi and. Lunkaran Singhi, tendering rent to all these three persons. Regarding partition, he alleged that he was not aware of the family partition.

3. By the impugned order, the learned District Judge allowed the application and directed that the execution of the compromise decree would proceed as per law.

4. We have heard the learned Counsel for the parties. The question for decision is whether the resistance was caused by the objector/appellant without any just cause or whether he was a tenant in respect of the room in question and, as such, was not bound by the decree.

5. It is established on record that ori-ginally the whole building of which the disputed room forms a part was owned by the three brothers viz., Manmull Singhi, Banney Chand Singhi and, Lunkaran Singhi. Manmull Singhi and Banney Chand Singhi are full brothers and Lunkaran Singhi is their first cousin. All the three are now dead. To prove the case of the decree-holders, the sons of all the three brothers have entered the witness box. The first witness is Amar Singh, son of Manmull Singhi; the second is Karan Singh Singhi, son of Lunkaran Singhi and third is Jhamarmull Singhi son of Banney Chand Singhi. Amar Singh Singhi has deposed that originally the building in question belonged to the three brothers viz., Manmull Singhi, Banney Chand Singhi and Lunkaran Singhi and the same was partitioned on 18-5-1973, each of them getting an area of 15 x 30 respectively vide partition deed filed in the the execution case as Exhibit D. 1, whereupon the disputed portion fell in the share of his father Manmull Singhi and heirs of Banney Chand and Lunkaran Singhi have no interest in the disputed back room shown in red in the sketch map attached with the decree. Further, he has deposed that Harkesh Rai was a tenant in respect of both the rooms which were shown in green and red colours and whereas the decree-holders have got possession in respect of the front room, the appellant was still occupying the back room as a trespasser having had entered possession as a licencee in the year 1974 through the tenant Harkesh Rai Agarwal. He has also stated that the objector does not pay any rent to anybody in respect of this room. Karan Singh Singhi has corroborated the testimony of Amar Singhi about the partition having taken place in the year 1973 whereby each of the brothers got one third share measuring 15 x 30. He has also deposed that the appellant was his tenant in respect of an area of 15x 30 on the third floor and that Harkesh Rai also used to occupy an area of 15 x 30. Further, he has stated that he has no interest in the back room occupied by Harkesh Rai. In cross-examination, he has said that the area allotted to each of the brothers was 15 x 30 from the ground floor to the top floor. The other witness Jhamarmull Singhi has also corroborated the testimony of both these witnesses by deposing that on partition being effected in the year 1973, each of the brothers got 15 x 30 as share and the portion occupied by tenant Harkesh Rai fell in the share of Manmull Singhi and, so Harkesh Rai got 15 x 30 under his occupation. The portion occupied by Ram Chandra Verma fell in the share of Lunkaran Singhi and he also got 15 x 30 as tenant. Further, he has deposed that Harkesh Rai and Ram Chandra Verma used to pay rent at Rs. 151 / - per month which was later increased to Rs. 201/-. He denied that Ram Chandra Verma had been occupy-ing an area more than 15 x 30 from the inception of his tenancy. Evidence produced by the decree-holders is thus to the effect that the three brothers viz., Manmull Singhi, Banney Chand Singhi and Lankaran Singhi were originally the owners of the entire building which was partitioned by them in the year 1973, each getting 15 x 30 vertically on all the floors. Harkesh Rai was a tenant on the third floor in respect of 15 x 30 and that portion fell in the share of Manmull Singhi. The appellant was also a tenant under the three brothers in respect of an area of 15 x 30 and that portion fell on partition in the share of Lunkaran Singhi. All the three witnesses have affirmed that the room in question is owned by the heirs of Lunkaran Singhi. This statement made by Karan Singhi is against his personal interest as he does not claim any share in the room in question.

6. As regards evidence of the objector/ appellant, he has entered the witness box as his own witness and has produced one witness R.B. Pradhan, whose evidence is not material and has, therefore, not been referred during arguments. The objector Ram Chandra Verma has deposed that he has been in occupation of all the rooms including the room in question since April 1963 when he was admitted as a tenant by Lunkaran Singh at the rate of Rs. 151 /- per month and he used to receive rent receipts also from Lunkaran Singhi. He has expressed ignorance as to whether there was any formal partition amongst the brothers in the year 1973. It is significant to note that in his evidence, he claimed himself to be the tenant only of Lunkaran Singhi which stand is against his own reply to the application under Order 21, Rule 97 where he alleged in paragraph 6 to have been inducted by all the three brothers viz., Manmull Singhi, Banney Chand Singhi and Lankaren Singhi. He was confronted with this paragraph in the objection but he could not offer any explanation. He has admitted that he, Harkesh Rai and one Yogendra Babu occupied their respective portions on the same floor at about the same time. Harkesh Rai occupied his portion in the year 1962 and the objector occupied his portion in the year 1963 and Yogendra Babu also occupied before the objector occupied. It was not in dispute during arguments that rent initially in respect of all the three portions was Rs. 151/- per month. This makes the case of the decree-holders probable that the area initially occupied by each of them was the same in extent i.e. 15 x 30, belying the case of the appellant, as the total accomodation in occupation of the latter is much more than that. He has himself admitted that the front portion occupied by him as shop measured 11 - 3" x 12 - 6" and back portion 25-" x 18 approximately. He has been evasive about the area of the room occupied by Harkesh Rai and stated that he could not say about that room even from the map which was filed by him as Exhibit D-2. He could not deny that the room occupied by Harkesh Rai as shop measured 8 x 12. There are a few rent receipts on record. Exhibit D-6 is the rent receipt in respect of February 1975 for Rs. 201/- and Exhibit D-8 is in respect of April 1975 at the same rate. Both these receipts have been issued showing the names of all the three brothers viz., Manmull Singhi, Banney Chand Singhi and Lalkaran Singhi as landlords in print. 2 other receipts are for the subsequent periods. D-7 is for February and March 1976 and Exhibit D-9 is for August 1981 both at the rate of Rs. 251/- per month. Both these receipts show the name of landlord as Lunkaran. These receipts also go to prove the case of the decree-holders that initially all the three brothers were the owners and it was subsequently on partition that Lunkaran Singhi alone became the owner in respect of the portion occupied by the objector as tenant.

7. Prior to Suit No. 35 of 1975 from which the present appeal has arisen, another suit bearing No. 19 of 1975 had been filed by Manmull Singhi against the tenant Harkesh Rai Agrawal on 19-5-1975. In that suit the portion in occupation of the tenant was described as "shop house". That suit was dismissed on 25-8-1975 on the ground that the plaint had neither been signed by the plaintiff nor By his recognised agent. In that suit an application had been filed on 24-6-75 by the appellant seeking adjournment on behalf of Harkesh Rai Agrawal. In view of the description of the property as shop house in the previous suit, it was contended on behalf of the appellant that Harkesh Rai was tenant only in respect of one room of which the decree-holder had already got the possession. Similar argument was made before the learned District Judge and was repelled on the ground that shop house does not mean only shop but it ordinarily means two rooms as shop-cum-house. Thereafter, in the plaint of civil suit No. 35 of 1975 the description of the suit premises was given as two rooms. It was contended on behalf of the decree-holders that the plaint of suit No. 19/75 had not been drafted by an advocate but by a petition-writer. In any case, if there was any mis-description, that could be corrected by amendment during the pendency of the suit, but the suit was dismissed on the ground that it had not been signed properly. It has also been submitted on behalf of the appellant that at present there are three rooms and the decree-holders have already got possession of the two rooms. In reply, the learned Counsel for the decree-holders has submitted that initially there was one room, but subsequently the tenants converted the same into two rooms and thereafter into three rooms during the pendency of the proceedings. In our view, the question for decision is not whether Harkesh Rai Agrawal was made a tenant of one room, two rooms or three rooms. The question is, whether the room in respect of which execution is sought was in the tenancy of Shri Harkesh Rar. Having regard to the fact that the evidence produced by the decree holders is convincing and probable and there is no reason to disbelieve it and evidence produced by the objector-appellant is highly improbable and unworthy of belief, we have no hesitation in confirming the finding of the learned Trial Court that the room in question was in the tenancy of Harkesh Rai Agrawal and not of the objector-appellant and as such the decree is binding on him.

8. As regards the allegation of the appellant that the decree was obtained by the decree-holder in collusion with the judgment debtors, there is no evidence in support of this plea. On the other hand, the learned Counsel for the decree-holders has submitted that there has been collusion between the judgment debtor Harkesh Rai and the appellant Ram Chandra Verma. In support of his submission, he has submitted that the fact that the appellant had filed an application for adjournment on 24-6-75 shows that he was aware of the proceedings between the landlord and the tenant from the very inception and the judgment-debtor was with him. further, it is submitted by the learned Counsel that Shri N.B. Kharga, Advocate, who is now appearing on behalf of the objector-appellant had appeared on behalf of the judgment-debtor during the suit proceedings. Shri Kharga has submitted, on the other hand, that there is no bar for him to appear on behalf of the objector-appellant. The question is not of any bar. The fact is that now by appearing on behalf of the objector he is opposing the decree to which he had consented as counsel for the judgment-debtor by admitting in the compromise petition that the objector had been given possession of the disputed portion by the judgment-debtor as a licencee. There is no merit in the plea of collusion raised by the appellant.

9. In the result, the appeal is dismissed, and it is directed that the decree-holders shall be put into possession of the property. The decree-holders shall get Rs. 2,000/- (rupees two thousand) as costs from the appellant Ram Chandra Verma.