SHAMSUDDIN Vs. ABBAS ALI

JUDGEMENT

(1.) THIS civil revision by Shamsuddin is directed against the order of the Civil Judge, Mohanlalgani, Luck-now allowing the objection of the op posite party Abbas Ali under Order 21, Rule 101. Civil P. C. It arises out of the following facts.

(2.) ONE Mohammad Jafar made a mortgage of five shops on the ground floor and two shops on the first floor situate at Sanitary Road, in Mohalla Maulviganj, in the city of Lucknow. Abbas Ali enforced the mortgage against Mohammad Anwar, Ashraf Jahan Begam and Masooma Begum, son, daughter and widow respectively of Mohammad Jafar, after the latter's death. He obtained a decree for sale and purchased the mort-taged property at a Court sale held on December 13, 1955. A warrant for delivery of possession was issued and posses sion was delivered to him on November 5, 1957 under the provisions of O. 21, R. 36, Civil P. C., as the various shops were in the possession of tenants. Sub sequently, Sultan Jahan Begum institut ed Regular Suit No. 62 of 1961 in the Court of the Civil Judge for partition of her one-third share in the disputed pro perties and for possession over her parti tioned share. She alleged in that suit that one Wahid Ali had three sons, Mohammad Jafar (mortgagor), Husain Ahmad and Nasir Ahmad, and two daughters, Ahmadi Begum and Bismillah Begam. Husain Ahmad purchased the site of the disputed shops and construct ed these thereon. On his death, the in heritance devolved upon her (Sultan Jahan Begum) to the extent of one-third, she being Husain Ahmad's daughter by his first wife Noor Jahan, and upon Shah Jahan Begum, to the extent of another one-third, she also being the daughter of Husain Ahmad by his second wife Bis millah Begum and the remaining one-third devolved upon Husain Ahmad's two brothers, Mohammad Jafar (the mort gagor) and Nasir Ahmad, and upon his two sisters, Ahmadi Begum and Bismillah Begum. Mohammad Jafar had, there fore, according to inheritance, an insigni ficant share in the properties and had no right to mortgage the properties in their entirety so as to bind her or the other co-sharers. The suit was instituted against all the heirs of Mohammad Jafar, the origi nal mortgagor, and against Abbas Ali, the mortgagee auction-purchaser. Abbas Ali filed a written statement in which he averred that Noor Jahan was not the wife of Husain Ahmad and Sultanjahan Begum was not Husain Ahmad's daughter by Noor Jahan and as such she had no right or title to the mortgaged property. He took various other pleas also to non suit her. Sultan Jahan Begum then withdrew her suit on April 2, 1964 against Abbas Ali, without liberty to in stitute a fresh suit. Her suit was decre ed against the other defendants in the suit. A preliminary decree for partition was prepared, and after it had become final, she put it in execution and prayed for delivery of possession over her parti tioned one-third share under the provi sions of Order 21, Rule 35, Civil P. C. She died during the pendency of the ex ecution proceedings and was substituted by Shamsuddin, the petitioner before me, her son. A warrant for delivery of pos session was issued and possession was delivered on July 10. 1966. The opposite party Abbas Ali then preferred an objec tion under Order 21, Rule 100, Civil Procedure Code alleging his dispossession and praying for restoration. His claim was allowed by the Civil Judge on July 31, 1967 and possession was restored. Shamsuddin feeling aggrieved by that order, has come up in revision.

(3.) THE learned counsel for the petitioner has strenuously pressed that Order 21, Rule 100, Civil P. C. applies only in the case of actual dispossession and not in a case which relates to sym bolical or juridical dispossession and since the opposite party Abbas Ali was only in symbolical possession and since the petitioner Shamsuddin was also given possession of that very kind, therefore, the learned Civil Judge erred in apply ing Rule 100 to the case and restoring possession to the opposite party. Reliance for this proposition has been placed on various cases. The earliest case is Ibrahim Mullick v. Ram Jadu Rakshit, (1903) ILR 30 Cal 710. In that case Ram Jadu Rakshit obtained a decree for arrears of rent against his tenants and in execution of that decree, brought the defaulting tenure to sale and purchased it himself. Formal possession was deli vered to him. Ibrahim Mullick made an application under Section 335 of the old Code of Civil Procedure on the allegation that though he continued to be in pos session, formal possession over the tank had been given to Ram Jadu Rakshit and since this amounted to his dispos session, therefore, possession should be restored to him. The Calcutta High Court held:-