Decided on January 15,1965

BABU Appellant


S.S. Dhavan, J. - (1.)THIS is a plaintiff's second appeal from the decree of the Addl. Civil Judge of Mathura dismissing their suit for an injunction to restrain the defendant-respondent Ram Ratan from interfering with their possession of a house situate in Sadabad. district Mathura. The original plaintiff was one Mst. Idu, but after her death the present plaintiffs were substituted as her heirs and legal representatives. The facts are these: Mst. Idu inherited from her father a four anna share in the house in dispute, the remaining shares being inherited by a brother and a sister. Idu had four sons and three daughters. During her lifetime three of these sons purported to sell the entire house to one Bataso who in turn sold it to Ram Ratan who is the principal defendant in the case. It goes without saying that these three sons had no right or interest even in her share, not to speak of the entire house and the transaction was obviously void and of no effect. Mst. Bataso the first transferee entered into a transaction with the three transferors by which they purported to become her tenants and this arrangement apparently continued after Bataso sold the house to the defendant Ram Ratan.
(2.)HE filed a suit for the ejectment of the transferors treating them as tenants whose tenancy had been terminated by him. HE claimed to be the owner and landlord of the house under the sale deed executed by Mst. Bataso in his favour. HE also sued for recovery of arrears of rent from these three persons. The court dismissed the suit for ejectment but decreed the claim for arrears. Thereupon Idu filed this suit in which she challenged the title of the defendant Ram Ratan and contended that he had acquired no right or interest in the property as her three sons had no title to the house in her lifetime. She alleged that her three sons were vagabonds and addicted to gambling and that they lost to the husband of Bataso in a gambling bout after which they entered into this transaction of sale of Idu's house. The plaintiff described the sale as a sham transaction. HEr case was that as Mst. Bataso got no title under the first sale she could give no title to Ram Ratan under the second. She alleged that she had received information that Ram Ratan was about to assert his title as the owner of the house by filing a suit for ejectment against her and intended to execute the decree by ejecting her. She asked for an injunction to restrain from interfering with his possession in any manner whatsoever.
The defendant Ram Ratan alone contested the suit. He denied that the sale in his favour was void and he claimed that he was the rightful owner of the house. Alternatively he pleaded that he was entitled to the benefit of Section 43 of the Transfer of Property Act to the extent of the share of the three sons of Idu, who inherited their share after her death.

The trial court held that the sale transaction in favour of Mst. Bataso and Ram Ratan respectively were void but Ram Ratan was entitled to the benefit of Section 43 of the Act, provided he exercised the option under that section. However, he further held that the plaintiffs were in exclusive possession of the house and Ram Ratan could not interfere with this possession "except by appropriate proceedings under the law." He decreed the suit and issued an injunction which is curiously worded. It runs thus: "He (defendant No. 1) is hereby permanently restrained from interfering with the possession of the plaintiffs 2 to 6 over the property in suit and from evicting them save and except for the fact that he can do so with respect to 3/22 and part of it after taking due legal steps for acquiring ownership of it and after taking further steps to obtain possession over this part of it in accordance with law."

(3.)ON appeal the learned Civil Judge agreed with the findings of the trial court but took the view that the defendant Ram Ratan must be deemed to have exercised his option in his written statement. He also held that the proper remedy for the plaintiffs was a suit for partition and they could not ask for an injunction without partitioning the property. Accordingly he allowed Ram Ratan's appeal and dismissed the suit of the plaintiff who have come to this Court in Second Appeal.
Mr. N.D. Ojha, learned counsel urged one point in support of this appeal. He argued that the learned Judge should have granted the injunction after he had argued that the sons of the plaintiffs were in exclusion possession of the house and he wrongly referred them to a suit for partition. According to the learned counsel he should have issued the injunction and asked the defendants to suit for partition.


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