TAJAMMUL HUSAIN Vs. MIR KHAN

JUDGEMENT

(1.) THIS Full Bench has been constituted to consider the correctness of the Division Bench decision in Habib Seth v. Kashi Nath, (1968) All LJ 446 because of the subsequent pronouncements of the Sup reme Court in the All India Film Corpora tion Ltd. v. Sri Raja Gyan Nath, (1969) 3 SCC 79 = (AIR 1969 NSC 185) and M/s. Sachalmal Parasram v. Ratnabai, AIR 1972 SC 637. The brief facts, necessary for under standing the background which necessitated the reference to the Full Bench are as fol lows:-

(2.) A house, situate within the limits of Aliganj Town Area, District Etah, be longed to one Tajamul Hussain. He mort gaged it with Sultan Ali, Abdul Razzaq and Abdul Gaffar. The mortgagees were put in possession under the terms of the mortgage. The mortgagees, thereafter, let out" the pre mises to Mir Khan, after taking rent deed from him, mentioning the rent at the rate of Rs. 3/8.00 p. m. In the year 1963 Tajammal Hussain filed a Suit No. 163 of 1963 for re demption of mortgage against the mortgagees The suit was ultimately decreed. Tajammal Hussain could get only symbolic possession of the premises. He, thereafter, filed the suit giving rise to the present appeal for posses sion against Mir Khan and a few others, who were carrying on business in partnership with him, on the ground that after the redemp tion of mortgage, the status of Mir Khan was simply that of a trespasser and he was liable to be ejected from the premises in question.

(3.) THE trial Court decreed the suit holding that the defendant Mir Khan was only a trespasser and thus could be dispos sessed. Aggrieved against the aforesaid deci sion of the trial Court, an appeal was filed in the Lower Appellate Court which was al lowed and the suit of the plaintiff Tajammal Hussain was dismissed with a finding that Mir Khan was not a trespasser. The Lower Appellate Court further found that mort gagees of the disputed premises were within their rights, in the ordinary course of manage ment, to have let out the same to Mir Khan. The Lower Appellate Court had mainly re lied on the decision reported in Habib Seth's case 1968 All LJ 446 (supra) and had found on the basis of the same that Tajammul Hussain, the plaintiff, was not entitled to get any decree of possession in the present suit.