1

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4610 OF 2014

MOHAN CHANDRA TAMTA (DEAD) THR. LRS.                                                       …  APPELLANT(S)

VERSUS

ALI AHMAD (D) THR LRS & ORS.                   …RESPONDENT(S)

J U D G M E N T

Deepak Gupta, J.

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

2

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

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.  

4

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

5

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 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 pleaded that the suit for

redemption is barred by time.

7. 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 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 court allowed the appeal and dismissed the

6

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

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.   

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

   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?”

7

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 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.3 Mustaffa Shah Khan 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 defendant no.3 Mustaffa Shah Khan had no share

in  the property.  This finding should have been challenged by

8

defendant 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 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  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

9

accordingly.   Pending applications, if any, shall also stand

disposed of.  No order as to costs.

…………………………….J. (Deepak Gupta)

…………………………….J. (Aniruddha Bose)

New Delhi September 12, 2019