ABDUL RAHMAN ZARI Vs. FATIMA EBRAHIM ZARI

JUDGEMENT

(1.) This second appeal raises a rather complex question as to the scope of a suit filed under the provisions of Order XXI, Rule 103 of the Code of Civil Procedure. That question is whether in such a suit, even if the plaintiff establishes the right which he claims to the present possession of the property, he cannot succeed of the defendants claims to be a co-owner of the property, though not in possession. I am told that this point has not been exactly covered by any reported decision of this Court and the nearest decision is the one reported in (Bai Ramlaxmi v. The Bank of Baroda) 54 Bom.L.R. 667.

(2.) The question arises in the following circumstances :---

(3.) According to the original plaintiff No. 1 Roshan, his brother Hasan executed a deed of arrangement on 20th January, 1941 whereunder he gave his th share to his grandson Gafur. Subsequently, Kasam, as guardian of Gafur, sold the th share of Gafur to plaintiff No. 1 Roshan on 16th March, 1944. The th share of Adam was also sold by the heirs of Adam to plaintiff No. 1 Roshan on 22nd December, 1952. Roshan thus became the full owner of house No. 1943. Roshan sold house No. 1943 to plaintiff No. 2 Maryambi on 1st November, 1962. It is for this reason that she had been joined with plaintiffs No. 1 in the suit. The case of the plaintiffs further was that house No. 1943 was being managed by the power of Attorney of Roshan by name Satar Abdul Gafoor Khan. In the room in suit, Roshan had kept one tenant by name Rajaram Laxman Nalavade, who was in possession of the room up to 22nd June, 1961. After Nalavade left the room, defendants Nos. 2 and 3 unlawfully took possession of the room and started living there. Roshan, therefore, filed Civil Suit No. 48 of 1961 against defendants Nos. 2 and 3 for possession of the room. A compromise was arrived at in that suit between Roshan and defendants No. 2 and 3. Under the comprise, defendants Nos. 2 and 3 agreed to deliver possession of the room to Roshan by 22nd August, 1961. As defendants No. 2 and 3 failed to deliver possession of the room to Roshan, he filed Darkhast No. 24 of 1962 against them to obtain possession. A warrant was issued for delivery of possession. At that time, defendant No. 1 obstructed delivery of possession to Roshan. Roshan, therefore, field Miscellaneous Application No. 16 of 1962 under Order XXI, Rule 97 of the Code of Civil Procedure, complaining of the obstruction. The Court dismissed the application under Rule 99 of Order XXI. The two plaintiffs thereafter filed the present suit under Rule 103 of Order XXI.