G H MOHAN CHANDRA TAMTA (DEAD) THR. LRS.versusALI AHMAD (D) THR LRS & ORS.

166                      [2019]REPORTS
               SUPREME COURT    12 S.C.R. 166              [2019] 12 S.C.R.


A                   MOHAN 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 –
C     Suit property, three storeyed structure was owned by three brothers,
      each having 1/3 rd share in the property – One of the brother
      mortgaged his 1/3rd share – Eventually, the predecessor-in-interest
      of the appellant became the full owner of the property – As per the
      plaintiff, defendant nos.1 & 2 were permitted to stay in some portion
D     of the house by appellant’s predecessor-in-interest – He issued
      notice to them to vacate the house but they refused– Suit for eviction
      filed – Dismissed – Appeal also dismissed – Appellant’s predecessor-
      in-interest sold the property to the appellant – Appellant filed suit
      for recovery of possession of the top floor of the property, in the
E     alternative also prayed for redemption of any un-redeemed portion
      of the mortgaged property – Defendant nos. 1 & 2 denied the
      ownership and claimed that the property was owned by defendant
      no.3 (the mortgagee) – Suit decreed – Defendant no. 2 filed appeal
      but, no appeal was filed by defendant no.3 – First appellate court
F     dismissed the plaintiff’s suit – Appellant filed second appeal in the
      High Court – Allowed – Appeal filed by one ‘MJ’ in the Supreme
      Court on the ground that she was also one of the legal heirs and no
      notice was served upon her – Allowed – Case remanded to the High
      Court – High Court held that even in the absence of defendant
      no.3, the appeal was maintainable – Held: High Court erred in
G
      holding that defendant nos.1 & 2 could maintain an appeal
      challenging the finding of the trial court that defendant no.3 was
      not the owner of the property when defendant no.3 himself had not
      challenged this – Tenants remain tenants whoever be the landlord/
      owner – Trial court held that the plaintiff had become the full owner
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                                       166
    MOHAN CHANDRA TAMTA (DEAD) THR. LRS. v. ALI                           167
            AHMAD (D) THR LRS & ORS.

of the whole property which stood redeemed and defendant no.3             A
had no share in the property –This finding should have been
challenged by defendant no.3 and cannot be challenged by the
defendant nos.1 & 2 who only claimed to be the tenants in the
property – Therefore, the appeal filed by them before the District
Judge on the issue as to whether the plaintiffs had become the full       B
owner of the property or not, was not maintainable – Judgment of
the High Court set aside while that of the trial court decreeing the
suit in favour of the appellants is restored.
      Disposing of the appeal, the Court
                                                                          C
       HELD: 1.1 The High Court gravely erred in holding that
defendant nos. 1 and 2 could maintain an appeal challenging the
finding of the trial court that defendant no. 3 was not the owner of
the property when defendant no. 3 himself had not challenged
this. Defendant nos. 1 and 2 only claimed to be the tenants in the
property. They did not claim any ownership rights. It is true that        D
according to them, it was defendant no. 3 who was the mortgagee
of the property but the trial court in the presence of the owner
after contest decreed the suit in favour of the plaintiff and against
the defendants. It specifically held that the plaintiff had become
the full owner of the whole property which stood redeemed and             E
defendant no. 3 had no share in the property. This finding should
have been challenged by defendant no. 3. This finding cannot be
challenged by the tenants. The tenants remain tenants whoever
be the landlord/owner. Once defendant no. 3 had not challenged
the decree of the trial court with regard to his title, defendant         F
nos. 1 and 2 cannot be allowed to challenge the finding of
ownership with which they are not directly concerned. Therefore,
the appeal filed by them before the District Judge on the issue as
to whether the plaintiffs had become the full owner of the property
or not, was not maintainable. They could have challenged the              G
decree on other grounds but not on this ground. The judgment
of the High Court is set aside. The judgment and decree of the
trial court decreeing the suit in favour of the appellants is restored.
[Paras 11-14][170-G-H; 171-A-D]

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168             SUPREME COURT REPORTS                          [2019] 12 S.C.R.


A           CIVIL APPELLATE JURISDICATION: Civil Appeal No. 4610
      of 2014
            From the Judgment and Order dated 31.03.2009 of the High
      Court of Uttarakhand at Nainital in Second Appeal No. 670 of 2001
      (Old No. 2341 of 1979).
B           Arvind Kumar Shukla, Ms. Reetu Sharma, Nihal Ahmad, Kunal
      Yadav, Ms. Neena Shukla, Advs. for the Appellants.
            The Judgment of the Court was delivered by
            DEEPAK GUPTA, J.
             1. This case has a long andchequered history. The litigation initially
C
      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
D     in favour of one AhmadullaKhan for Rs.50/- in the year 1872. One of
      the brothers, Subrati died issue-less 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
E     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
F     of 2/3rd of the structure. The remaining 1/3rdcontinued 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.
G            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.
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    MOHAN CHANDRA TAMTA (DEAD) THR. LRS. v. ALI                                169
     AHMAD (D) THR LRS & ORS. [DEEPAK GUPTA, J.]

He then filed Suit No.115 of 1960 for their eviction. The defendant nos.       A
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.
                                                                               B
        4. Accordingto 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
                                                                               C
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             D
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
                                                                               E
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 un-redeemed
portion of the mortgaged property and expressed his willingness to pay         F
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 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. It was           G
pleaded that the suit for redemption is barred by time.
     7. The Trial courtheld 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
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170             SUPREME COURT REPORTS                          [2019] 12 S.C.R.


A     to Ahmadulla Khan was redeemed by Lalta Prasad Tamta. The suit
      was accordingly decreed on 23.03.1975.
             8. Defendant no.2, i.e. the tenant, filed an appeal being Civil Appeal
      No.10 of 1975 but no appeal was filed by defendant no.3 Mustaffa Shah
      Khan against the decree passed by the trial court. The first appellate
B     court allowed the appeal and dismissed the plaintiff’s suit holding that
      plaintiff is the owner of the property only to the extent of 3/4th share and
      since defendant nos. 1 and 2 are the tenants of defendant no.3 they are
      not liable to be evicted.
             9. The present appellant filed a second appeal in the Allahabad
C     High Court. The High Court in the first round set aside the judgment of
      the first appellate court,allowed the appeal and decreed the suit for
      possession. An appeal was filed by one Smt. Murtaza Jahan in this Court
      on the ground that she was also one of the legal heirs and no notice had
      been served upon her. This Court allowed the appeal only on that short
      ground and remanded the case to the High Court.
D
            10. After remand, the High Court framed three questions of law
      but we are only concerned with the substantial question at serial no.3
      which reads as under:-
            “ xxx                     xxx                xxx
E               xxx                   xxx               xxx
            3. Whether, appeal of tenant was maintainable, while the
            mortgagee (defendant no.3) had accepted the decree of the trial
            court by which the trial court recorded the finding that redemption
            of mortgage has also taken place?”
F
            The High Court held that even in the absence of defendant no.3
            the 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 2
      could maintain an appeal challenging the finding of the trial court that
G     defendant no.3 was not the owner of the property when defendant no.3
      himself had not challenged this.
            12. An important aspect of the matter is that defendant nos. 1 and
      2 only claimed to be the tenants in the property. They did not claim any
      ownership rights. It is true that according to them, it was defendant no.
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    MOHAN CHANDRA TAMTA (DEAD) THR. LRS. v. ALI                                  171
     AHMAD (D) THR LRS & ORS. [DEEPAK GUPTA, J.]

3 Mustaffa Shah Khan who was the mortgagee of the property but the               A
trial court in the presence of the owner after contest decreed the suit in
favour of the plaintiff and against the defendants. It specifically held
that the plaintiff had become the full owner of the whole property which
stood redeemed anddefendant no.3 Mustaffa Shah Khanhad no share in
the property. This finding should have been challenged by defendant
                                                                                 B
no.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 decree
of the trial court with regard to his title, defendant nos. 1 and 2 cannot be
allowed to challenge the finding of ownership with which they are not
directly concerned. Therefore, the appeal filed by them before the District      C
Judge on the issue as to whether the plaintiffs had become the full owner
of the property or not, was not maintainable. They could have challenged
the decree on other grounds but not on this ground.
       14. In view of the above discussion, we set aside the judgment
dated 31.03.2009 of the High Court of Uttarakhand,at Nainital in Second          D
Appeal No.670 of 2001 and restore the judgment and decree dated
23.03.1975 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.
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Divya Pandey                                               Appeal disposed of.




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