Farkunda Mosque Vs. Hamed Basha & Ors  INSC 1542 (2 December 1996)
O R D
respondents have been served, they are not appearing either in person or
through counsel. We have taken the assistance of Shri A.T.M. Sampath, learned
counsel appearing for the appellant, and have gone through the judgment and
records placed before the Court.
appeal by special leave arises from the judgment of the Madras High Court, made
on April 12, 1996 in Second Appeal No. 372/83. The
appellant had filed a suit for ejectment of Nos.1 to 3 from the suit property
and for recovery of possession thereof on the pleading that the house bearing
Door No.12-A and 12-B (Old No.12-A) in Mosque Street, Royapuram, Madras-13 was
his property; the super- structure thereof was purchased by the appellant by
sale deed dated September 13, 1975 from Mohd. Hussain under whom the third
respondent came into possession as his sub-lessee.
the possession may be directed to be given to him. Though the trial court and
the appellate Court had held that the appellant is the owner of the property
and the 3rd respondent is a sub-lessee of respondent Nos. 1 and 2, the High
Court has gone into the documentary evidence. It would appear that this
property is situated in a triangular passage leading to Mosque Street, Adem Saheb Street and Thoppa Modali Street in Madras City. It is also an admitted position that the 3rd defendant-3rd
respondent had purchased the same land under a registered sale deed in the year
1969 much earlier to the appellant's purchasing the alleged super-structure on
the said property. The High Court also found that the 3rd defendant had
purchased the super- structure. It is sought to be contended by the appellant
that the lands, the subject matter of the purchase of the super-structure by
the appellant and the respondents, are different and distinct and, therefore,
the finding recorded by the High Court is not correct in law. We need not go
into the question in this behalf for the reason that the appellant has
proceeded on the premise that the 3rd respondent is a sub-lessee of
respondent-defendant Nos. 1 and 2 alleged to have been let in by Mohd. Hussain.
who is said to be the owner of the super-structure from who the appellant had
claimed title. In effect the decree sought for is against the real owner of the
land, namely, the third defendant. Under these circumstances, the suit as
framed by the appellant was not correctly decreeable. The High Court,
therefore, was right on this ground in rejecting the claim of the appellant and
dismissing the suit.
appeal is accordingly dismissed. No costs.
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