ZAFARYAB HASAN Vs. UMAR DARAZ ALI KHAN

JUDGEMENT

(1.) This appeal arises out of a suit brought by the plaintiff-respondent for ejectment of the defendant-appellant. It is not now disputed that the plaintiff- respondent is the owner of the house in dispute. It was occupied by one Mazhar Ali against whom a suit for ejectment was brought sometime before 1921. The plaintiff-respondent re-let the house to Mazhar Husain by an instrument dated 19 December 1921, under which he was entitled to retain it at monthly rent of Rs. 4. He agreed to vacate the house of his own accord at the end of one year from the date of the agreement. Mazhar Ali continued to hold under the agreement, though he does not seem to have ever paid any rent. Mazhar Ali died leaving a number of heirs, including the defendant-appellant. Plaintiff-respondent brought a suit for ejectment of the heirs of Mazhar Ali, and obtained a decree in execution whereof the defendant-appellant objected to his own possession being interfered with on the ground that he had not been impleaded in the suit. This objection was upheld by an order dated 22 December, 1923, which runs as follows: Wahidul Hasan claims title to the house from his father. The decree- holder has obtained decree against his other brothers but did not implead Wahidul Hasan probably because the latter was then out and not in actual possession of the house. In any case when he has now taken possession his resistance is bona fide, and the decree-holder must get a decree against him in regular course.

(2.) The present suit was brought on 4 March 1925, for ejectment of the defendant-appellant, the allegations against him being that as one of the heirs of his father Mazhar Ali he has no right to the occupation of the house any more than the other heirs had. In defence it was pleaded that the defendant was in possession of the house in dispute in his own right as owner thereof, and that Mazhar Ali did not occupy the house as a tenant holding from the plaintiff- respondent. In the alternative, it was maintained that if the relationship of landlord and tenant be found to exist, the defendant cannot be ejected, no notice to vacate having been given. All these pleas were overruled by the lower Courts, and a decree for ejectment was passed in favour of the plaintiff-respondent. Before the lower appellate Court it was urged that the suit was barred by limitation inasmuch as it was instituted more than one year after the order dated 22nd December 1923 quoted above. The suit was said to be governed by Art. 11-A, Lim. Act. Although the plea was raised for the first time before the lower appellate Court, it was entertained but rejected on the merits by that Court. The present second appeal has been preferred by the defendant-appellant. The learned Counsel, who appeared in support of the appeal, has urged (1) that the plaintiff's suit was barred by Art. 11-A, Lim. Act, and (2) that the defendant-appellant being a tenant, as alleged by the plaintiff-respondent the suit is not maintainable in the absence of notice required by law. I do not think any of these two contentions can prevail. Art. 11-A, Lim. Act applies to a suit by a person against whom an order has been made under the Civil P. C., 1908, upon an application by the holder of a decree for the possession of immovable property or by the purchaser of such property sold in execution of a decree, complaining of resistance or obstruction to the delivery of possession thereof or upon an application by any person dispossessed of such property in the delivery of possession thereof to the decree-holder or purchaser, to establish the right which he claims to the present possession of the property comprised in the order.

(3.) It should be read with Rule 103, Civil P.C. to which it is co-related and which provides that any party not being a judgment-debtor against whom an order is made under Rule 98, Rule 99 or Rule 101 may institute a suit to establish the right which he claims to the present possession of the property.