A third party cannot resist the execution of a decree if they have not been impleaded in the suit in which the decree was obtained and if their claim is not bonafide.

( 1 ) THIS revision has been preferred against order No. 79 dated 16. 6. 90 passed by the Second Additional Court of Munsif, Alipur in Title Execution Case No. 8 of 1985.

( 2 ) FACTS of this case are not in controversy. One Krishna Chandra Basu was a tenant in the disputed property since sometime in 1940. He died in 1960, leaving behind one Manik Basu, Gita Basu, petitioner Dipti Basu among others. The petitioner Dipti Basu was then aged about 10 years. Opposite Party No. 1 Namita Das became owner of the disputed premises by purchase on 23. 5. 1973. She filed a suit against opposite party No. 2 + Gita Basu for eviction. Gita pleaded that on the death of Krishna Chandra all his heirs inherited the tenancy and therefore the suit was bad for non-joinder of parties. The said ejectment suit being T. S. No. 383 of 1976 (renumbered as T. S. 33 of 1982) ultimately ended in a decree on 28. 1. 85. Title Appeal No. 229 of 1985 proved unsuccessful. Second appeal being S. A. T. 1540 of 1986 also failed. The decree-holder put the decree in execution. Thereafter, the petitioner instituted Tide Suit No. 159 of 1986 in the fourth court of the Munsif, Alipore and asked for temporary injunction restraining the decree-holder from interfering with her possession. Her plea is that she inherited her father's tenancy. The learned Munsif rejected the application for temporary injunction. The petitioner lost in appeal. Her revision also did not succeed.

( 3 ) IN Title Execution Case, No. 8 of 1985 peaceful possession could not be delivered to the decree-holder on account of the resistance by the petitioner. Now the decreeholder-opposite party asked for police help under rule 208 of the Civil Rules and Orders. The petitioner entered appearance and filed objection. The said objection has been rejected and the prayer for police help has been granted. So the petitioner feels aggrieved.

( 4 ) I am in agreement with Mr. Bhattacharya appearing for the petitioner that a court cannot grant a prayer for police help against a third party in possession of the property bonafide. As a matter of fact a person in possession by virtue of a bonafide claim of right cannot be dispossessed by force backed by police. The court is bound to investigate into the alleged right of the third party.

( 5 ) ADMITTEDLY the petitioner is one of the heirs of a deceased tenant. In a suit filed against her sister Gita Basu she did not figure as a party. The plea of Gita Basu that she inherited the tenancy along with her brother and sisters did not find favour with the court. As a matter of fact, she lost even in second appeal. It cannot by any means be contended that the said decree is fraudulent or collusive.

( 6 ) MR. Roychowdhury appearing for the decree-holder opposite party No. 1 contends that Gita Basu paid rent to the landlady throughout and she was treated as a tenant. She contended the suit for eviction and finally lost in High Court. Mr. Roychowdhury means to say that Gita Basu represented the estate of her father even if the petitioner is allowed to canvass that the tenancy of her deceased father devolved upon all the heirs who became joint tenants. Mr. Roychowdhury draws inspiration from the Supreme Court decision in H. C. Pandey vs. G. C. Paul, AIR 1989 SC 1470. In essence Supreme Court accepted the theory of representation. A notice of eviction and a decree against one of several heirs of a deceased tenant were upheld by the Supreme Court. What the heirs succeed as joint tenants is a single tenancy which is neither divisible nor separable. The heirs have ,no separate and distinct right therein. In such a case if one of the heirs, contest a proceeding bonafide thereby representing other heirs it is difficult to follow as to why other heirs, will not be bound by the decree. It is now high time to extend the theory of representation now applicable in pending cases to prospective cases ; else otherwise there is no end of litigation. The left-out heirs can