MOHD MUSTAFA Vs. MANSOOR

JUDGEMENT

(1.) THIS appeal arises out of a suit under Order XXI, Rule 103, C.P.C. The brief facts are these: The house in dispute was owned by one Abdul Ghani and the plaintiff-appellant, Mohd. Mustafa purchased it on 10th June, 1959. The house was in the tenancy of one Ghissu who was admittedly dead on 10th June, 1959 when the house was purchased by the plaintiff. Ghissu's four sons and his widow were in possession of the house. They were impleaded as the five defendants in the suit. The plaintiff, while purchasing the said property on 10th June, 1959, had also obtained the right to realize certain arrears of rent which were said to be due to the landlord from the tenants. On 14-9-1959 the plaintiff sent a notice addressed to the four sons of Ghissu requiring them to pay arrears of rent and determining their tenancy. The said defendants, however, neither paid the rent nor vacated the premises. Therefore, the plaintiff filed original suit No. 44 of 1960 against the said four sons of Ghissu. The reliefs claimed were ejectment and recovery of the arrears of rent and damages. Out of the four sons, who were impleaded as the defendants in the said suit, the names of two, namely, Mansoor and Shakoor, were deleted during the pendency of the suit. The trial court decreed the suit for arrears of rent against Dullu and dismissed the claim for ejectment. The lower appellate court modified the trial court's decree to the extent that the claim for arrears of rent was decreed against Abdul Ghaffar also along with Dullu. In the second appeal this Court granted full relief to the plaintiff, including the claim for ejectment of the said two defendants, namely, Dullu and Abdul Ghaffar. In pursuance of the decree for ejectment the plaintiff obtained possession on 1-1-1964. Ghissu's two sons, Mansoor and Shakoor and his widow, Sayeedan, were also evicted on the basis of the aforesaid decree even though they were no parties to the same. They, therefore, preferred objections under Order XXI, Rule 100 C.P.C. and on the same the impugned Order dated 25-4-1964 was passed by the execution court allowing the said objection and upholding the right of the said three defendants to regain possession and consequently the plaintiff was ordered to be dispossessed from the property in suit. The plaintiff, therefore, filed the aforementioned suit under Order XXI, Rule 103, C.P.C. claiming that he was not liable to be dispossessed and the impugned order dated 25-4-1964 passed by the execution court was liable to be set aside. He impleaded all the four sons and the widow of the late Ghissu as defendants in the suit. Inter alia, his allegation in the plaint was "that the entire family of Ghissu was never a tenant of the house and that the new tenancy had been taken up by Dullu and Abdul Ghaffar who had the responsibility of paying the rent. No tenancy had, however, been created in favour of any other person." It was also alleged that on 1-1-1964 in the execution of the decree possession was taken from Dullu and Abdul Ghaffar, judgment-debtors who alone were in actual physical possession and occupation of the property and not the other two sons and the widow of the late Ghissu. It was also pleaded that in view of the rejection of an earlier application dated 14-12-1963 which was made by the defendants, the second application under Order XXI, Rule 100, C.P.C. on which the impugned order dated 23-4-64 was passed was not maintainable. Two sets of written statements were filed- one by the defendants 1 to 3 and the other by the defendants 4 and 5. It will be seen that the first three defendants were those heirs of Ghissu who were not parties to the first suit, namely, suit No. 44 of 1960. The second set of defendants, namely, Nos. 4 and 5, were the only parties to the said earlier suit. The defence was common. Their plea was that after the death of Ghissu all his heirs, namely, the defendants 1 to 5, became tenants by inheritance. The plaintiff also admitted them to be his tenants after Ghissu. Hence the defendants 1 to 3, who were not parties to the earlier suit, were not liable to be evicted in the execution of the decree passed in the said suit. They were, therefore, wrongly evicted in the execution of the said decree and were entitled to get back possession The impugned order dated 25-4-1964 was therefore, correctly passed in their favour. After framing the necessary issues the trial court tried the suit and dismissed the same. It recorded a finding that the defendants Nos. 1 to 3 did not acquire the tenancy rights by inheritance. They were therefore, held to be trespassers but, still, the trial court held that as they were not impleaded in the earlier suit, therefore, in the execution of the decree passed in that suit they could not be evicted.

(2.) THE plaintiff went up in appeal to the lower appellate court but the same did not succeed. It was held that all the heirs of the late Ghissu inherited the tenancy. As they were not parties to the earlier suit, therefore, they were not liable to be evicted in the execution of the decree passed in the said suit. THE impugned order dated 25-4-1964 has therefore, held that the plaintiff had failed to prove his allegation in the plaint that after the death of Ghissu there was a fresh tenancy in favour of the defendants 4 and 5.