Suit – Finding as to ownership – Who cannot challenge – 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 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 predecessorin-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 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]
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).
Arvind Kumar Shukla, Ms. Reetu Sharma, Nihal Ahmad, Kunal Yadav, Ms. Neena Shukla, Advs. for the Appellants.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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