TMI Blog2013 (8) TMI 1097X X X X Extracts X X X X X X X X Extracts X X X X ..... ict Judge, Amravati. On 02.03.1960, Gangabai also purchased the share in the property belonging to Mohta, with the leave of the court in auction. The auction was confirmed by the court on 21.09.1960 in favour of Gangabai after rejecting the objections raised by Respondent Nos.2 and 3. On 25.11.1960 Gangabai was placed in joint possession of the mortgaged property in execution by the civil court. 5. Gangabai then filed a SCS No.1109 of 1961 and 1110 of 1961 against two tenants for recovery of 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 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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. 9. Gangabai later bequeathed the suit property in favour of the appellant. Consequently the appellant filed Second Appeal No.548 of 2003 challenging the findings recorded by the trial court as well as by the District Court. The High Court by the impugned judgment found no substantial question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 65 of the Code of Civil Procedure, though sale of the joint share of the property in favour of Gangabai became absolute on 09.04.1974 yet it would be deemed that joint share of the property vested in her only in the year 1960. Learned counsel also submitted that even though sale in question became absolute at a later date by assumption of law, the right in property purchased was deemed to be vested in the purchaser only from the date of sale. Learned counsel also submitted that all these aspects and legal issues were considered by all the courts below and they have concurrently found that the plaintiff Gangabai or the appellant could not establish her right over -the property in question. Learned counsel, therefore, prays that the appeal be dismissed with costs. 12. We have narrated the facts in detail to indicate as to when the rights had been accrued to Gangabai. Gangabai, as already stated, became a mortgagee of the property as early as in 1953 by a registered mortgage deed and the suit filed by Gangabai for enforcing the mortgage was decreed by the civil court on 01.09.1956 and that preliminary decree later became final as against the share of Vijaysingh Mohta. Ganga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the decree passed in the suit, the lessee cannot resist a claim for possession by the auction-purchaser. The lessee could apply for being joined as a party to the suit and ask for an opportunity to redeem the property. But if he allows the property to be sold in execution of the mortgage decree and they have now lost the present case, the lessees allowed the suit lands to be sold in execution of the mortgage decree and they have now lost the right of redemption. They cannot resist the claim of the auction purchaser of recovery of possession of the lands. 14. Section 65-A of the TPA deals with the mortgagee s powers to lease. However, in view of Section 52, if the mortgagor grants such a lease during the pendency of a suit for sale by the mortgagee, the lessee is bound by the result of litigation and if the property is sold in execution of the decree, the lessee cannot resist a claim for possession by auction purchaser. 15. Section 52 deals with cases of transfer of anything otherwise dealing with any immovable property after any suit or proceeding in which any right to such immovable property is directly and -specifically in question has been filed. Section 65-A of the TPA d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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