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

Citation: [2019] 12 S.C.R. 166 · Decided: 12-09-2019 · Supreme Court of India · Bench: DEEPAK GUPTA · Disposal: Disposed off

Judgment (excerpt)

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166
SUPREME COURT REPORTS
[2019] 12 S.C.R.
MOHAN CHANDRA TAMTA (DEAD)
THR. LRS.
v.
ALI AHMAD (D) THR LRS & ORS.
(Civil Appeal No. 4610 of 2014)
SEPTEMBER 12, 2019
[DEEPAK GUPTA AND ANIRUDDHA BOSE, JJ.]
Suit – Finding as to ownership – Who cannot challenge –
Suit property, three storeyed structure was owned by three brothers,
each having 1/3rd 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
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
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
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
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
 [2019] 12 S.C.R. 166
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of the whole property which stood redeemed and defendant no.3
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
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
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
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
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
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. 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]
MOHAN CHANDRA TAMTA (DEAD) THR. LRS. v. ALI
AHMAD (D) THR LRS & ORS.
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168
SUPREME COURT REPORTS
[2019] 12 S.C.R.
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 S

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