Sunita Jugalkishore Gilda vs Ramanlal Udhoji Tanna (Dead)Thr.Lrs ...

3. Gangabai, the grand mother-in-law of the appellant, was a mortgagee in respect of a three storied building, popularly known as -Gowardhandas Mathurdas Mohta, along with the suit premises and open space situated at Nazrul Plot Nos. which was executed by one Vijaysingh Mohta, father of Respondent Nos.2 and 3 for himself and as guardian of Respondent No.2 on 24.03.1953. A partition deed was executed by Mohta and Respondent Nos.2 and 3 on 11.1.1956.

5. Gangabai then filed a SCS No.1109 of 1961 and 1110 of 1961 against two tenants for recovery of ½ share in rent, which suits were, however, dismissed by the trial court. Gangabai, later, filed a revision before the High Court, which was allowed decreeing her claim for ½ share in the rent. Gangabai, on 05.01.1963, filed a SCS -No.33 of 1963 against all the tenants including Respondent Nos.2 and 3 for a declaration and injunction that she was the owner of ½ share in the property and entitled to1/2 share in the rent thereof from each of the tenants. SCS No.33 of 1963 was later decreed by the civil court, Amravati on 23.03.1983 in favour of Gangabai, granting the reliefs sought for. Thereafter Respondent Nos.2 and 3, without the consent of Gangabai, however, started recovering rent from Respondent No.1 on the strength of some alleged rent receipts. Brij Lal, the real brother of Respondent No.1, who was also one of the tenants/defendants in the above- mentioned suit, left the decreed premises, without raising any claim.

6. The First Appeal No.40 of 1959, filed by Gangabai, was later withdrawn on 20.03.1967 since final decree had already been passed. The First Appeal No.72 of 1959 filed by Respondent Nos.2 and 3 was, however, allowed setting aside the preliminary decree dated 20.09.1958. Gangabai then preferred civil appeal No.582 of 1969 before this Court against that order, which was allowed on 09.04.1974, the judgment of which is reported in Smt. Gangabai vs. Vijay Kumar and others (1974) 2 SCC 393. This Court set -aside the judgment of the High Court and restored that of the trial court.

7. Respondent Nos.2 and 3 then filed SCS No.76 of 1974 in October 1974 for setting aside the preliminary decree dated 20.09.1958 before the Civil Judge, Senior Division, Amravati. The suit was, however, dismissed with costs by the civil court on 31.01.1980. Respondent Nos.2 and 3 then filed RCA No.234 of 1980 before the District Court, Amravati. Before the District Court, Amravati, Gangabai and Respondent Nos.2 and 3 filed a compromise application and 21.08.1987 and agreed to partition the suit property. District Judge, Amravati vide its order dated 12.10.1988 passed a compromise decree disposing of RCA No.234 of 1980 in view of the compromise application filed on21.08.1987. In view of the compromise arrived at between Gangabai and Respondent Nos.2 and 3, the suit property was partitioned and the area occupied by Respondent No.1 came to the share of Gangabai. Respondent Nos.2 and 3, however, filed Second Appeal No.57 of 1989 challenging the compromise order dated 12.10.1989 before the Bombay High Court, Nagpur Bench. The second appeal was, -

8. Gangabai then issued legal notice to Respondent No.1 on 05.10.1989 asking him to vacate the suit property contending that he was a trespasser and had been occupying the suit property without her consent and the transfer of interest made by Respondent No.2 and 3 in favour of Respondent No.1 was hit by doctrine of lis pendens. Gangabai following the above- mentioned notice, preferred SCS No.6 of 1990 against the respondents for recovery of possession, damages for use and occupation before the Civil Judge, Senior Division, Amravati. Respondent No.1 filed his written statement claiming that he was a tenant of the original owners, namely, Respondent Nos.2 and 3. The trial court vide its judgment dated 26.10.1994 dismissed the suit filed by Gangabai on the ground that Respondent Nos.2 and 3 being mortgagors were entitled to induct Respondent No.1 as a tenant. The Court also recorded the finding that Respondent No.1 was not a trespasser when he was initially inducted into suit property. Gangabai then preferred RCA No.7 of 1995 before the District Judge, Amravati, which was also dismissed on 21.07.2003 on the ground that -Section 44 of the Transfer of Property Act (for short the TPA) did not debar a co-owner from inducting a tenant and Section 65 of the Act was inapplicable as there was no relationship of mortgagor-mortgagee.

17. In the above-mentioned circumstances, we are of the view that the courts below have not appreciated the various legal issues and committed an error in non-suiting the appellant. We answer those questions in favour of the appellant and hold that the appellant is entitled to get a decree, as prayed for, since the original first respondent was inducted illegally and to the prejudice of the original mortgagee. Consequently, the judgments of the courts below are set aside and the suit is decreed, however, without any mesne profits. The appeal is allowed, but without any order as to costs.