MASJID FARKUNDA MOSQUEversusHAMED BASHA AND ORS.

                    MASJID FA,RKUNDA MOSQUE                                  A
                                v.
                     HAMED BASHA AND ORS.

                           DECEMBER 2, 1996

             [K. RAMASWAMY AND G.T. NANAVATI, JJ.J                           B

       Suit filed by appel/am for ejectme11t of respondents a11d for recove1y of
possessio11 of suit prope1ty-Plea that super-stmcture was purchased by ap-
pellant i11 1975 from M u11der whom the third respondent came into possessio11
as his sub-lessee-High Court rejected the claim of appellant and dismissed C
his suit-Appeal-Held, it was admitted position that the 3rd defendant
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-stnicture
on the said property-The 3rd defendant had also purchased the super- struc-
ture-In effect the decree sought for was against the real owner of the land, D
namely, the third defendant-In these circumstances, the suit as framed by
the appellanr was not coTTect/y decreeable-The High Court, therefore, was
right in rejecting the claim of the appellant and dismissing the suit.

        CIVIL APPELLATE JURISDICTION: Civil Appeal No. 15698 of
1996.                                                                        E
     From the Judgment and Order dated 12.4.96 of the Madras High
Court in SA. No. 372 of 1983.

        A.T.M. Sampath and V. Balaji for the Appellant.
                                                                              F
        The following Order of the Court was delivered :

        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.    G
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 respondents Nos. 1 to 3 from H
                                    421
    422                   SUPREME COURT REPORTS [1996] SUPP. 9 S.C.R.
A 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 there-
    of was purchased by the appellant by sale deed dated September 13, 1975
    from Mohd. Hussain under whom the third respondent came into posses-
    sion as his sub-lessee. Therefore, the poS>eS>ion may be directed to be
B
    given to him. Though the trial Court and the appellant 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
C   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.
D   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
E   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 whom 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
F
    dismissing the suit.

          The appeal is accordingly dismissed. No costs.

    T.N.A.                                                    Appeal dismissed.