MASJID FARKUNDA MOSQUE versus HAMED BASHA AND ORS. on 2 December 1996

MASJID FA,RKUNDA MOSQUE

v. HAMED BASHA AND ORS. DECEMBER 2, 1996

[K. RAMASWAMY AND G.T. NANAVATI, JJ.J

A

B

Suit filed by appel/am for ejectme11t of respondents a11d for recove1y of possessio11 of suit prope1ty-Plea that super-stmcture was purchased by ap-pellant i11 1975 from M u11der whom the third respondent came into possessio11 as his sub-lessee-High Court rejected the claim of appellant and dismissed C his suit-Appeal-Held, it was admitted position that the 3rd defendant respondent had purchased the same land under a registered sale deed in the year 1969 much earlier to the appellant's purchasing the alleged super-stnicture on the said property-The 3rd defendant had also purchased the super- struc-ture-In effect the decree sought for was against the real owner of the land, D namely, the third defendant-In these circumstances, the suit as framed by the appellanr was not coTTect/y decreeable-The High Court, therefore, was right in rejecting the claim of the appellant and dismissing the suit.

C

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 15698 of 1996.

E

From the Judgment and Order dated 12.4.96 of the Madras High Court in SA. No. 372 of 1983.

A.T.M. Sampath and V. Balaji for the Appellant.

F

The following Order of the Court was delivered :

Leave granted.

Though respondents have been served, they are not appearing either in person or through counsel. We have taken the assistance of Shri A.T.M. G Sampath, learned counsel appearing for the appellant, and have gone through the judgment and records placed before the Court.

This appeal by special leave arises from the judgment of the Madras High Court, made on April 12, 1996 in Second Appeal No. 372/83. The appellant had filed a suit for ejectment of respondents Nos. 1 to 3 from H 421

422 SUPREME COURT REPORTS [1996] SUPP. 9 S.C.R.

A the suit property and for recovery of possession thereof on the pleading that the house bearing Door No. 12-A and 12-B (Old No. 12-A) in Mosque Street, Royapuram, Madras-13 was his property; the super-structure there-of was purchased by the appellant by sale deed dated September 13, 1975 from Mohd. Hussain under whom the third respondent came into posses-B [sion ][as ][his ][sub-lessee. Therefore, the ][poS>eS>ion ][may ][be directed to be ]given to him. Though the trial Court and the appellant Court had held that the appellant is the owner of the property and the 3rd respondent is a sub-lessee of respondent Nos. 1 and 2, the High Court has gone into the documentary evidence. It would appear that this property is situated in a triangular passage leading to Mosque Street, Adem Saheb Street and C Thoppa Modali Street in Madras City. It is also an admitted position that the 3rd defendant-3rd respondent had purchased the same land under a registered sale deed in the year 1969 much earlier to the appellant's purchasing the alleged super-structure on the said property. The High Court also found that the 3rd defendant had purchased the super-structure. D It is sought to be contended by the appellant that the lands, the subject matter of the purchase of the super-structure by the appellant and the respondents, are different and distinct and, therefore, the finding recorded by the High Court is not correct in law. We need not go into the question in this behalf for the reason that the appellant has proceeded on the premise that the 3rd respondent is a sub-lessee of respondent-defendant E Nos. 1 and 2 alleged to have been let in by Mohd. Hussain, who is said to be the owner of the super- structure from whom the appellant had claimed title. In effect the decree sought for is against the real owner of the land, namely, the third defendant. Under these circumstances, the suit as framed by the appellant was not correctly decreeable. The High Court, therefore, F [was right on this ground ][in ][rejecting the claim of the appellant and ]dismissing the suit.

The appeal is accordingly dismissed. No costs.

T.N.A.