Supreme Court of India
G H MOHAN CHANDRA TAMTA (DEAD) THR. LRS. versus ALI AHMAD (D) THR LRS & ORS. on 12 September 2019
SUPREME COURT REPORTS
[2019] 12 S.C.R.
AMOHAN CHANDRA TAMTA (DEAD)
THR. LRS.
v.
ALI AHMAD (D) THR LRS & ORS.B(Civil Appeal No. 4610 of 2014)
SEPTEMBER 12, 2019
[DEEPAK GUPTA AND ANIRUDDHA BOSE, JJ.]
Suit – Finding as to ownership – Who cannot challenge –CSuit property, three storeyed structure was owned by three brothers,each having 1/3[rd] share in the property – One of the brothermortgaged his 1/3[rd] share – Eventually, the predecessor-in-interestof the appellant became the full owner of the property – As per theplaintiff, defendant nos.1 & 2 were permitted to stay in some portionDof the house by appellant’s predecessor-in-interest – He issuednotice to them to vacate the house but they refused– Suit for evictionfiled – Dismissed – Appeal also dismissed – Appellant’s predecessor-in-interest sold the property to the appellant – Appellant filed suitfor recovery of possession of the top floor of the property, in theEalternative also prayed for redemption of any un-redeemed portionof the mortgaged property – Defendant nos. 1 & 2 denied theownership and claimed that the property was owned by defendantno.3 (the mortgagee) – Suit decreed – Defendant no. 2 filed appealbut, no appeal was filed by defendant no.3 – First appellate courtFdismissed the plaintiff’s suit – Appellant filed second appeal in theHigh Court – Allowed – Appeal filed by one ‘MJ’ in the SupremeCourt on the ground that she was also one of the legal heirs and nonotice was served upon her – Allowed – Case remanded to the HighCourt – High Court held that even in the absence of defendantno.3, the appeal was maintainable – Held: High Court erred inGholding that defendant nos.1 & 2 could maintain an appealchallenging the finding of the trial court that defendant no.3 wasnot the owner of the property when defendant no.3 himself had notchallenged this – Tenants remain tenants whoever be the landlord/owner – Trial court held that the plaintiff had become the full ownerH
of the whole property which stood redeemed and defendant no.3had no share in the property –This finding should have beenchallenged by defendant no.3 and cannot be challenged by thedefendant nos.1 & 2 who only claimed to be the tenants in theproperty – Therefore, the appeal filed by them before the DistrictJudge on the issue as to whether the plaintiffs had become the fullowner of the property or not, was not maintainable – Judgment ofthe High Court set aside while that of the trial court decreeing thesuit in favour of the appellants is restored.
Disposing of the appeal, the Court
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Conclusion
Disposing of the appeal, the Court
HELD: 1.1 The High Court gravely erred in holding thatdefendant nos. 1 and 2 could maintain an appeal challenging thefinding of the trial court that defendant no. 3 was not the owner ofthe property when defendant no. 3 himself had not challengedthis. Defendant nos. 1 and 2 only claimed to be the tenants in theproperty. They did not claim any ownership rights. It is true thataccording to them, it was defendant no. 3 who was the mortgageeof the property but the trial court in the presence of the ownerafter contest decreed the suit in favour of the plaintiff and againstthe defendants. It specifically held that the plaintiff had becomethe full owner of the whole property which stood redeemed anddefendant no. 3 had no share in the property. This finding shouldhave been challenged by defendant no. 3. This finding cannot bechallenged by the tenants. The tenants remain tenants whoeverbe the landlord/owner. Once defendant no. 3 had not challengedthe decree of the trial court with regard to his title, defendantnos. 1 and 2 cannot be allowed to challenge the finding ofownership with which they are not directly concerned. Therefore,the appeal filed by them before the District Judge on the issue asto whether the plaintiffs had become the full owner of the propertyor not, was not maintainable. They could have challenged thedecree on other grounds but not on this ground. The judgmentof the High Court is set aside. The judgment and decree of thetrial court decreeing the suit in favour of the appellants is restored.[Paras 11-14][170-G-H; 171-A-D]
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ACIVIL APPELLATE JURISDICATION: Civil Appeal No. 4610of 2014
From the Judgment and Order dated 31.03.2009 of the HighCourt of Uttarakhand at Nainital in Second Appeal No. 670 of 2001(Old No. 2341 of 1979).
Arvind Kumar Shukla, Ms. Reetu Sharma, Nihal Ahmad, KunalYadav, Ms. Neena Shukla, Advs. for the Appellants.
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The Judgment of the Court was delivered by DEEPAK GUPTA, J.
1. This case has a long andchequered history. The litigation initiallyCstarted almost 59 years back. The suit property was a three storeyedstructure in the town of Almora in Uttarakhand. The first records of thishouse are from the year 1872 when this property is recorded in theownership of three brothers namely Pir Bux, Kalia and Subrati. Eachbrother had 1/3[rd] share in the property. Pir Bux mortgaged his 1/3[rd] shareDin favour of one AhmadullaKhan for Rs.50/- in the year 1872. One ofthe brothers, Subrati died issue-less and his share of the property devolvedupon his two brothers Pir Bux and Kalia, who got an additional 1/6[th]share each making them owners of half share each in the property. Onthe death of Kalia, his share was succeeded by his son Ilahi Bux, and onthe death of Ilahi Bux his widow Smt. Hafizan succeeded to his share ofEthe property. She sold her entire share of the property i.e., 50% to oneLalta Prasad Tamta, predecessor in interest of the present appellant.
2. Half of Subrati’s property i.e. 1/6[th] of the total which had fallento the share of Pir Bux from Subrati was inherited by his son GulamFarid who in turn sold this property to Lalta Prasad Tamta by way of asale deed on 28.07.1944. Thus, Lalta Prasad Tamta became the ownerFof 2/3[rd] of the structure. The remaining 1/3[rd]continued to be undermortgage. According to the plaintiff, Gulam Farid redeemed the propertyfrom Ahmadulla Khan and sold the 1/3[rd] share to Lalta Prasad Tamta on17.03.1954. Therefore, Lalta Prasad became the full owner of theproperty.G3. It is the case of the plaintiff that defendant no.1 Khalil Ahmedand defendant no.2 Ali Ahmad were permitted to stay in some portion ofthis house by Lalta Prasad Tamta. Over a period of time the buildingstarted subsiding and the ground floor got embedded in the earth andonly two storeys were left. In 1960, Lalta Prasad Tamta issued notice tothe said two defendants to vacate the house but they refused to do so.
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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 andclaimed that they were the tenants of defendant no. 3 Mustaffa ShahKhan, who was not a party in this suit. The said suit instituted by LaltaPrasad Tamta was dismissed. Civil Appeal No. 58 of 1961 filed beforethe District Judge, Nainital, was also dismissed.
4. Accordingto the plaintiff, encouraged by the dismissal of thissuit, the defendants got further emboldened and trespassed over otherrooms in the house. It was urged that defendant no. 3 Mustaffa ShahKhan had no right in the property suit.
5. Another relevant fact is that according to the plaintiff after thedeath of Ahmadulla Khan he was succeeded by three sons. One of hissons Mahmood Shah Khan had 1/3[rd] share of 1/3[rd], i.e. 1/9[th] share in theproperty. Mahmood Shah Khan transferred his rights of mortgagee toone Sadiq Hussain and Vilayat Hussain.In 1958, Lalta Prasad Tamtainstituted a Civil Suit No.216 of 1958 against Sadiq Hussain and VilayatHussain. A compromise was arrived at between the parties and SadiqHussain and Vilayat Hussain abandoned their rights in the property. Thus,Lalta Prasad Tamta became the owner of this 1/9[th] share too. There isobviously some confusion because according to Lalta Prasad Tamta hehad already redeemed the entire 1/3[rd] share of Ahmadulla Khan w.e.f.17.03.1954. His explanation is that to avoid any cloud to his title hesettled the matter.
6. Lalta Prasad Tamta in turn sold the property to Mohan ChandraTamta, appellant herein, on 27.08.1966. Mohan Chandra Tamta filed asuit for recovery of possession of the top floor of the house (3[rd] floor)and in the alternative also prayed for redemption of any un-redeemedportion of the mortgaged property and expressed his willingness to paythe balance mortgaged amount. The defendant nos. 1 and 2 contestedthe suit and denied the ownership of the plaintiff on the suit property.They again claimed that the property was owned by defendant no.3Mustaffa Shah Khan who had been impleaded as party in this suit.Defendant no.3 supported the stand of defendant nos. 1 and 2. It waspleaded that the suit for redemption is barred by time.
7. The Trial courtheld that Lalta Prasad Tamta had acquired fullownership of the property and he had transferred the same to MohanChandra Tamta. A finding was given that the entire property transferred A
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Ato Ahmadulla Khan was redeemed by Lalta Prasad Tamta. The suitwas accordingly decreed on 23.03.1975.
8. Defendant no.2, i.e. the tenant, filed an appeal being Civil AppealNo.10 of 1975 but no appeal was filed by defendant no.3 Mustaffa ShahKhan against the decree passed by the trial court. The first appellateBcourt allowed the appeal and dismissed the plaintiff’s suit holding thatplaintiff is the owner of the property only to the extent of 3/4[th] share andsince defendant nos. 1 and 2 are the tenants of defendant no.3 they arenot liable to be evicted.
9. The present appellant filed a second appeal in the AllahabadCHigh Court. The High Court in the first round set aside the judgment ofthe first appellate court,allowed the appeal and decreed the suit forpossession. An appeal was filed by one Smt. Murtaza Jahan in this Courton the ground that she was also one of the legal heirs and no notice hadbeen served upon her. This Court allowed the appeal only on that shortground and remanded the case to the High Court.D
10. After remand, the High Court framed three questions of lawbut we are only concerned with the substantial question at serial no.3which reads as under:- “ xxx xxx xxx xxx xxx xxx E
3. Whether, appeal of tenant was maintainable, while themortgagee (defendant no.3) had accepted the decree of the trialcourt by which the trial court recorded the finding that redemptionof mortgage has also taken place?”
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The High Court held that even in the absence of defendant no.3the appeal was maintainable.
11. We have heard learned counsel for the appellants. In our view,the High Court gravely erred in holding that defendant nos. 1 and 2could maintain an appeal challenging the finding of the trial court thatGdefendant no.3 was not the owner of the property when defendant no.3himself had not challenged this.
12. An important aspect of the matter is that defendant nos. 1 and2 only claimed to be the tenants in the property. They did not claim anyownership rights. It is true that according to them, it was defendant no.H
3 Mustaffa Shah Khan who was the mortgagee of the property but thetrial court in the presence of the owner after contest decreed the suit infavour of the plaintiff and against the defendants. It specifically heldthat the plaintiff had become the full owner of the whole property whichstood redeemed anddefendant no.3 Mustaffa Shah Khanhad no share inthe property. This finding should have been challenged by defendantno.3. This finding cannot be challenged by the tenants.
13. The tenants remain tenants whoever be the landlord/owner.Once defendant no.3 Mustaffa Shah Khan had not challenged the decreeof the trial court with regard to his title, defendant nos. 1 and 2 cannot beallowed to challenge the finding of ownership with which they are notdirectly concerned. Therefore, the appeal filed by them before the DistrictJudge on the issue as to whether the plaintiffs had become the full ownerof the property or not, was not maintainable. They could have challengedthe decree on other grounds but not on this ground.
14. In view of the above discussion, we set aside the judgmentdated 31.03.2009 of the High Court of Uttarakhand,at Nainital in SecondAppeal No.670 of 2001 and restore the judgment and decree dated23.03.1975 of the trial court decreeing the suit in favour of the appellants.The appeal stands disposed of accordingly. Pending applications, if any,shall also stand disposed of. No order as to costs.
Divya Pandey
Appeal disposed of.
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