Prafulla C. Pant, J. -
(1.)THIS appeal, preferred under Section 100 of Code of Civil Procedure, 1908, is directed against the judgment and decree dated 17.4.1979, passed by learned Civil Judge, Almora, in Civil Appeal No. 10 of 1975, whereby judgment and decree dated March 29, 1975, passed by Munslf, Almora, in Civil suit No. 20 of 1969, decreeing the suit for possession, is set aside and suit is dismissed.
(2.)HEARD learned Counsel for the parties and perused the record.
Brief facts of case are that Civil suit No. 20 of 1969 was filed by plaintiff/appellant Mohan Chandra Tamta, for recovery of the possession of the property, with the pleadings that a house bearing Municipal No. 166 (Old No. 96), situated in Mohalla Dhunikhola (Tirwakhola), is within the limits of Municipal Board, Almora. It is pleaded that the plaintiff is owner of the said building. Details or the property in suit are given in Para 1 of the plaint, stating that in the settlement of 1944, in Phat Khata No. 92, Muntakhib No. 37, building is shown bearing No. 3696, its Chowk is shown bearing No. 3694 and path to the building is shown bearing No. 3695. Plaintiffs case is that he purchased the said property from Lalta Prasad Tamta through registered sale deed dated 27.8.1966. Narrating the source of title, it is alleged in the plaint that in the Becket Settlement of year 1872, the property in suit was owned by three brothers namely, Pir Bux, Kalia and Shivrati. Pir Bux. being the eldest brother, according to the then existing 19th Century Kumaun System, was shown as Hissedar, while his brothers were shown as Sikmi. ('Sikmi' in the then existing system meant a shareholder with Hissedar). As such, each brother had 1/3rd share in the property. In Becket Settlement of 1872, the building in question had its No. 953 and chowk and path were borne in Nos. 950. 951 and 958. Pir Bux mortgaged his 1/3rd share in the property for a loan of Rs. 50 to one Ahmadulla in the year 1872. Since, Shivrati died issueless, his share devolved on his brothers, namely, Pir Bux and Kalia equally. As such, each one of them became owner of 1/2 share in the property. After the death of Kalia, his share was succeeded by his son Ilahi Bux. Said share ultimately succeeded by Smt. Hafizan (widow of Ilahi Bux), who transferred the said 1/2 share in the property to Lalta Prasad Tamta (predecessor in title of Plaintiff). Gulam Farid, son of Pir Bux, who succeeded his father's 1/2 share in the property, transferred the 1/6th share in the property to Lalta Prasad vide sale deed dated 28.7.1944. As such remaining 1/3rd share remained under mortgage, which ultimately got redeemed and transferred vide sale deed dated 17.3.1954 by said Lalta Prasad from Gulam Farid. As such, Lalta Prasad became owner of the whole of the property in suit since 17.3.1954, and also he got possession of the property. It is also pleaded in the plaint that name of Lalta Prasad was recorded in the records as full -fledged HISSEDAR of entire property. In Para 8 of the plaint, it is alleged that in the second floor of the house, defendant No. 1 Khalil Ahamad and defendant No. 2 All Mohammad alias Murli, were permitted by Lalta Prasad to stay. It is also pleaded in said Para that since major portion of the ground floor of the building with the flux of time got embedded, as such the second floor used to be called first floor of the house. In the year 1960, Lalta Prasad Tamta, gave a notice to defendant Nos. 1 and 2 to leave the house, which they refused and as such he (Lalta Prasad) filed a suit for their eviction. In said suit defendants No. 1 and 2 claimed themselves to be tenants of defendant No. 3 Mustafa Shah Khan. (Mustafa Shah Khan was not party in said suit). The said suit filed by Lalta Prasad (predecessor in title of the plaintiff), was dismissed and appeal filed by Lalta Prasad was also dismissed vide order dated 28.3.1964, passed by appellate court. It is alleged in the plaint that defendants No. 1 and 2, thereafter, trespassed over remaining rooms of the second floor. It is pleaded by the plaintiff that defendant No. 3, claims himself to be heir of original mortgagee Ahmadulla Khan, but he has no right in the property in suit. It is further pleaded in the plaint that in fact one Mahmood Shah Khan, who was one of the three sons of Ahmadulla, succeeded the rights of the morgagee (Ahamadulla) to the extent of 1/3rd share. Heirs of Mahmood Shah Khan, in the year 1931, transferred the rights of morgagee to one Sadiq Hussain and Vilayat Hussain, to said extent of 1/3rd share of the property. In the year 1958, in a litigation (Civil suit No. 216 of 1958), with Lalta Prasad, the two (Sadiq Hussain and Vilayat Hussain), entered into compromise and abandoned their rights with effect from 16.6.1960. The remaining 2/3rd share of the 1/3rd mortgaged property, the other two sons Jahid Shah Khan and Masood Shah Khan, continued to remain mortgagee since 1931 till 1954, when the property was finally got redeemed fully. With aforesaid pleadings the plaintiff filed suit for recovery of possession of the property of the second floor (Timanzila) of the house in suit. Also, in alternative redemption was also sought stating that the plaintiff is further ready to pay Rs. 50 to the defendant No. 3.
Defendants No. 1 and 2 contested the suit and filed their joint written statement before the trial court In which the details of the house in question are admitted, however, the ownership of the plaintiff is denied. It is pleaded in the written statement that it was only Pir Bux, who was Hissedar (owner) of the property in question in the Settlement year 1872, but his brothers Shivrati and Kalia had no shares in it. It is further pleaded by the two defendants that Shivrati and Kalia never remained in possession of the property nor they were related with Pir Bux. It is also denied that Ilahi Bux was son of Kalia. However, it is admitted that Smt. Haflzan was wife of Ilahi Bux. Lalta Prasad, never got possession of the property in suit and entries of ownership in his favour in the record is wrong. According to defendants No. 1 and 2, the property in suit was in possession of one Jahid Shah Khan, who was brother of defendant No. 3, Mustafa Shah Khan. Jahid Shah Khan died issueless and thereafter defendant No. 3 became owner of the property. Defendants No. 1 and 2 are tenants of defendant No. 3. It is further stated in the written statement that Lalta Prasad's son Bishan Prasad initiated proceedings under Section 107 of Code of Criminal Procedure, against the defendants No. 1 and 2, but the same was rejected. Denying that the mortgaged property was ever redeemed, the two defendants have stated that they are tenants for more than 40 years, since the time of Jahid Shah Khan. In the additional pleas, it is stated that Ahamadulla was in possession of the property in suit from the time before the settlement year of 1872. It is also pleaded that Lalta Prasad vide his notice dated 10.12.1955, had earlier demanded rent from Abdul Razak, father of defendant No. 2 and when he did not succeed another notice in the year 1957 and again in the year 1960 whereafter a Civil suit No. 115 of 1960, was instituted by him. However, same was dismissed on 31.7.1961. It is admitted that the appeal against said decree was also dismissed on 28.3.1964. It is also pleaded that the suit is bad for non -joinder of heirs of Ahmad Shah Khan. The alternative relief of redemption is barred by Order XXXIV, Rule 7 of Civil Procedure Code.
(3.)DEFENDANT No. 3 Mustafa Shah Khan filed his separate written statement admitting the details of the property, but he also denied the title of the plaintiff. This defendant has pleaded that none of Pir Bux, Kalia or Shivrati had any right or title over the disputed property nor were they in possession of the property. It is denied that defendants No. 1 and 2 were lincensee of Lalta Prasad (predecessor in title of the plaintiff Mohan Chandra Tamta). It is admitted that suit filed by Lalta Prasad was dismissed by civil court. It is also specifically pleaded that rights of Ahmadulla Khan were not that of mortgagee nor is there question of redemption of the property. In the additional pleas, the defendant No. 3, states that suit is bad for misjoinder of causes of action and alternative relief of redemption is barred by Rules 4 and 5 of Order XXXIV of Code of Civil Procedure, 1908. It is also pleaded that assuming for a moment that there was a mortgage, in that event, suit for redemption is barred by time. According to this defendant from Ahmadulla, the property was succeeded by his sons Mahmood Ahmad Shah Khan and Masood Shah Khan, whereafter, Jahir Shah Khan son of Ahmad Shah Khan succeeded the property and finally it came to the ownership of defendant No. 3. It is denied by defendant No. 3 that Ilahi Bux was son of Kalia or that the Hafizan was his wife. It is also denied that Gulam Farid was son of Pir Bux. Alleging that the sale deed, executed in the year 1966, is a forged one, it is stated that Lalta Prasad had no right over the property in suit nor could he transfer it to the plaintiff. It is also stated by this defendant that Vilayat Hussain had no concern over the property in suit and compromise entered between Vilayat Hussain and Lalta Prasad is not binding on the answering defendant. In Para 32 of the written statement of defendant No. 3, it is pleaded that as per the family settlement of the defendants, their ancestral family properties of Almora, Ranlkhet and Rampur, were partitioned and the property of Almora and Ranlkhet, came in the share of Jahid Shah Khan.