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2019 Supreme(SC) 1020
SUPREME COURT OF INDIA
DEEPAK GUPTA, ANIRUDDHA BOSE, JJ.
Mohan Chandra Tamta (Dead) through LRs. – Appellant
Versus
Ali Ahmad (Dead) through LRs. and Others – Respondents
Civil Appeal No. 4610 of 2014
Decided On : 12-09-2019
For the Appellant(s) : Mr. Arvind Kumar Shukla, Adv. Ms. Reetu Sharma, AOR Mr. Nihal Ahmad, Adv.
IMPORTANT POINT
Tenant will remain tenant whoever is the owner. Tenant cannot challenge a decree of title.
Headnote:
Property law - Suit for eviction of tenants - Tenants denying plaintiff’s ownership and asserting that defendant 3 was the owner - Trial court holding that plaintiff was the owner - Tenants cannot challenge such finding - Held, appeal filed by tenants and not by defendant 3 was not maintainable. (Para 12, 13)
Facts of the case:
The suit property was a three storeyed structure in the town of Almora in Uttarakhand. The first records of this house are from the year 1872 when this property is recorded in the ownership of three brothers namely Pir Bux, Kalia and Subrati. Each brother had 1/3rd share in the property. Pir Bux mortgaged his 1/3rd share in favour of one Ahmadulla Khan for Rs. 50/- in the year 1872. One of the brothers, Subrati died issueless and his share of the property devolved upon his two brothers Pir Bux and Kalia, who got an additional 1/6th share each making them owners of half share each in the property. On the death of Kalia, his share was succeeded by his son Ilahi Bux and on the death of Ilahi Bux his widow Smt. Hafizan succeeded to his share of the property. She sold her entire share of the property i.e. 50% to one Lalta Prasad Tamta, predecessor in interest of the present appellant.
Half of Subrati’s property i.e. 1/6th of the total which had fallen to the share of Pir Bux from Subrati was inherited by his son Gulam Farid who in turn sold this property to Lalta Prasad Tamta. Thus, Lalta Prasad Tamta became the owner of 2/3rd of the structure. The remaining 1/3rd continued to be under mortgage. According to the plaintiff, Gulam Farid redeemed the property from Ahmadulla Khan and sold the 1/3rd share to Lalta Prasad Tamta. Therefore, Lalta Prasad became the full owner of the property.
Defendant no. 1 Khalil Ahmed and defendant no. 2 Ali Ahmad were permitted to stay in some portion of this house by Lalta Prasad Tamta. In 1960, Lalta Prasad Tamta issued notice to the said two defendants to vacate the house but they refused to do so. He then filed Suit No. 115 of 1960 for their eviction which was dismissed. Civil Appeal was also dismissed.
After the death of Ahmadulla Khan he was succeeded by three sons. One of his sons Mahmood Shah Khan had 1/3rd share of 1/3rd, i.e. 1/9th share in the property. Mahmood Shah Khan transferred his rights of mortgagee to one Sadiq Hussain and Vilayat Hussain. In 1958, Lalta Prasad Tamta instituted a Civil Suit against Sadiq Hussain and Vilayat Hussain. A compromise was arrived at between the parties and Sadiq Hussain and Vilayat Hussain abandoned their rights in the property. Thus, Lalta Prasad Tamta became the owner of this 1/9th share too.
Lalta Prasad Tamta in turn sold the property to Mohan Chandra Tamta, appellant herein, on 27.08.1966. Mohan Chandra Tamta filed a suit for recovery of possession of the top floor of the house (3rd floor) and in the alternative also prayed for redemption of any unredeemed portion of the mortgaged property and expressed his willingness to pay the balance mortgaged amount. Defendant nos. 1 and 2 denied the ownership of the plaintiff on the suit property. They again claimed that the property was owned by defendant no. 3 Mustaffa Shah Khan who had been impleaded as party in this suit. Defendant no. 3 supported the stand of defendant nos. 1 and 2.
The Trial court held that Lalta Prasad Tamta had acquired full ownership of the property and he had transferred the same to Mohan Chandra Tamta. A finding was given that the entire property transferred to Ahmadulla Khan was redeemed by Lalta Prasad Tamta. The suit was decreed.
Defendant no. 2, i.e. the tenant, filed an appeal being but no appeal was filed by defendant no. 3 Mustaffa Shah Khan against the decree passed by the trial court. The first appellate court allowed the appeal and dismissed the plaintiff’s suit.
The High Court held that even in the absence of defendant no. 3 the appeal was maintainable.
Finding of the Court:
Tenants cannot challenge a decree of ownership.
Result: Appeal disposed of.
JUDGMENT :
DEEPAK GUPTA, J.
1. This case has a long and chequered history. The litigation initially started almost 59 years back. The suit property was a three storeyed structure in the town of Almora in Uttarakhand. The first records of this house are from the year 1872 when this property is recorded in the ownership of three brothers namely Pir Bux, Kalia and Subrati. Each brother had 1/3rd share in the property. Pir Bux mortgaged his 1/3rd share in favour of one Ahmadulla Khan for Rs. 50/- in the year 1872. One of the brothers, Subrati died issueless and his share of the property devolved upon his two brothers Pir Bux and Kalia, who got an additional 1/6th share each making them owners of half share each in the property. On the death of Kalia, his share was succeeded by his son Ilahi Bux and on the death of Ilahi Bux his widow Smt. Hafizan succeeded to his share of the property. She sold her entire share of the property i.e. 50% to one Lalta Prasad Tamta, predecessor in interest of the present appellant.
2. Half of Subrati’s property i.e. 1/6th of the total which had fallen to the share of Pir Bux from Subrati was inherited by his son Gulam Farid who in turn sold this property to Lalta Prasad Tamta by way of a sale deed on 28.07.1944. Thus, Lalta Prasad Tamta became the owner of 2/3rd of the structure. The remaining 1/3rd continued to be under mortgage. According to the plaintiff, Gulam Farid redeemed the property from Ahmadulla Khan and sold the 1/3rd share to Lalta Prasad Tamta on 17.03.1954. Therefore, Lalta Prasad became the full owner of the property.
3. It is the case of the plaintiff that defendant no. 1 Khalil Ahmed and defendant no. 2 Ali Ahmad were permitted to stay in some portion of this house by Lalta Prasad Tamta. Over a period of time the building started subsiding and the ground floor got embedded in the earth and only two storeys were left. In 1960, Lalta Prasad Tamta issued notice to the said two defendants to vacate the house but they refused to do so. He then filed Suit No. 115 of 1960 for their eviction. The defendant nos. 1 and 2 denied the title of Lalta Prasad Tamta over the property and claimed that they were the tenants of defendant no. 3 Mustaffa Shah Khan, who was not a party in this suit. The said suit instituted by Lalta Prasad Tamta was dismissed. Civil Appeal No. 58 of 1961 filed before the District Judge, Nainital, was also dismissed.
4. According to the plaintiff, encouraged by the dismissal of this suit, the defendants got further emboldened and trespassed over other rooms in the house. It was urged that defendant no. 3 Mustaffa Shah Khan had no right in the property suit.
5. Another relevant fact is that according to the plaintiff after the death of Ahmadulla Khan he was succeeded by three sons. One of his sons Mahmood Shah Khan had 1/3rd share of 1/3rd, i.e. 1/9th share in the property. Mahmood Shah Khan transferred his rights of mortgagee to one Sadiq Hussain and Vilayat Hussain. In 1958, Lalta Prasad Tamta instituted a Civil Suit No. 216 of 1958 against Sadiq Hussain and Vilayat Hussain. A compromise was arrived at between the parties and Sadiq Hussain and Vilayat Hussain abandoned their rights in the property. Thus, Lalta Prasad Tamta became the owner of this 1/9th share too. There is obviously some confusion because according to Lalta Prasad Tamta he had already redeemed the entire 1/3rd share of Ahmadulla Khan w.e.f. 17.03.1954. His explanation is that to avoid any cloud to his title he settled the matter.
6. Lalta Prasad Tamta in turn sold the property to Mohan Chandra Tamta, appellant herein, on 27.08.1966. Mohan Chandra Tamta filed a suit for recovery of possession of the top floor of the house (3rd floor) and in the alternative also prayed for redemption of any unredeemed portion of the mortgaged property and expressed his willingness to pay the balance mortgaged amount. The defendant nos. 1 and 2 contested the suit and denied the ownership of the plaintiff on the suit property. They a
