MOHAN CHANDRA TAMTA Vs. ALI AHMAD

JUDGEMENT

(1.) 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 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 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.) 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.