Kisori Lal Goswami Vs Lala Shib Lall

1. We think that this Rule must be made absolute. The applicant in this Court has purchased some mortgaged property and has obtained possession of the said property u/s 319, C.C.P. The applicant in the Court below, Shib Lall, is a third party who alleges that he is the owner of a jote included within the said mortgaged property and he applied to the Court below, under the provisions of section 335, on the ground that the possession of his jote had been disturbed by the symbolical possession given to the applicant to this Court under the provisions of section 319. We think that on his own showing, he had no right to any relief under the provisions of section 335, C.C.P. In the first place he did not say that he had been dispossessed by the possession given to applicant to this Court. He said that his possession had been disturbed, but we do not think that he can fairly say that. The symbolical possession given to the applicant to this Court under the provisions of section 319 could not disturb the possession of any one except the judgment-debtor in the suit in which he had obtained a decree and the applicant to the Court below. Shib Lall does not occupy that position. Then the learned Judge in the Court below expressly finds, as a matter of fact, that the possession of Shib Lall has not been interfered"with, and that he is actually in receipt of rent from the tenants of the jote of which, he says, he is the owner. Under these circumstances, we think that the provisions of section 335 do not apply to this case at all, and that the applicant to the Court below, the third party, Shib Lall had no right to any relief under that section. We, therefore, make the rule absolute with costs two gold mohurs.