MANIKCHAND SARUPCHAND SHAH Vs. GANGADHAR SHANKAR SHETE

JUDGEMENT

(1.) THIS is a Second Appeal against an order passed in favour of respondent No. 1 Gangadhar awarding him actual Possession of a house bearing C. S. No. 120 in Vetal Peth, Poona City, from the appellants as well as respondent No. 2. This house originally belonged to respondent No. 1 Gangadhar. On 18th March 1925 the house was mortgaged with one Punamchand, but the equity of redemption came to be sold and purchased by one Laxminarayan on 11th June 1928. on 12th July 1929. Laxminarayan sold the equity of redemption to the mortgagee Punamchand who thus claimed to have become owner of the House. On 22nd July 1935, Punamchand sold the house to one Dhanraj Hajarimal, and on 18th November 1941 Dhanraj sold it to Kesarichand Lalvani, respondent No. 2 in this appeal. It appears, however, that though the equity of redemption was sold as early as 1928, the possession of the house continued with Gangadhar, the original owner, and that is why Kesarichand Lalwani filed Regular Civil Suit No. 1602 of 1947 against Gangadhar and others for possession of the house. On 13th March, 1951 the Suit was decreed against Gangadhar, and in execution of the decree obtained by Kesarichand, Darkhast No. 1287 of 1950 was filed. On 19th November 1951 respondent No, 2 Kesari-chand took possession of the house. It appears that formerly in tbat house there were tenants of Gangadhar, but Kesarichand was successful in evicting those tenants and put the present appellants in possession of the suit house as tenants on 1st April 1952. In the meanwhile, an appeal had been preferred by Gangadhar from the decree of the trial Court passed on 13th March 1951, and that appeal came to be dismissed on 27th March 1952. There was a Second Appeal filed by Gangadhar, being Second Appeal No. 1170 of 1953, to this Court, and it was decided on 28th March 1936. That appeal was allowed on the ground that the suit was barred by limitation and Kesarichand's suit came to be dismissed. That is why Gangadhar applied to the trial Court for restitution by filing Miscellaneous Application No. 458 of 1956, and in this restitution application he made Kesarichand opponent No. 1 and the present appellants as opponents Nos. 2 and 6. Other opponents were also impleaded, but it is not necessary for the purpose of this appeal to make any reference to them. In this application for restitution, so far as the present appellants are concerned, Gangadhar claimed actual possession. Opponent No. 1 Kesarichand made certain contentions about improvements effected by him; but so far as this appeal is concerned, we need not consider that contention. Opponent No. 2 Manikchand, who is appellant No. 1 in this appeal stated that he was not in possession of the suit property either as owner or tenant, but alleged that his full brother Chandulal Sarupchand was a tenant. This Chandulal Surup-chand was original opponent No. 6 and is present appellant No. 2. His principal defence was that he had taken the premises at a monthly rent of Rs. 13 from Kesarichand and that as he was a tenant on the suit premises, the Court had no jurisdiction to grant actual possession by virtue of the provisions of the Bombay Rent Act. His contea-lion was that Gangadhar would be, at the most, entitled to symbolical possession.

(2.) THE trial Court came to the conclusion that it had jurisdiction to entertain the application and that Gangadhar was entitled to Khas possession as against Kesarichand as well as the present appellants. It also came to the conclusion that so far as opponents Nos. 2 and 6 were concerned, they had no rights as against the applicant Gangadhar. It is not necessary for the purpose of this appeal to deal with the trial Court's findings on the other issues in the application. In accordance with these findings, the learned trial Judge directed issue of warrant of possession against opponents Nos. 1, 2 and 6 under Order 21, Rule 35 (1) of the Civil Procedure Code.

(3.) AGAINST that order there was an appeal, and the learned Extra Assistant Judge, Poona, upheld the findings of the trial Court and dismissed the appeal. It is against this decision that the present Second Appeal has been filed.