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PETITIONER: MASJID FARKUNDA MOSQUE

       Vs.

RESPONDENT: HAMED BASHA & ORS.

DATE OF JUDGMENT:       02/12/1996

BENCH: K. RAMASWAMY, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      Though 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.      This 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. Therefore, 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

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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.      The appeal is accordingly dismissed. No costs.