Ashutosh Das vs Sushma Rani Das and Others

S.L. Saraf, J.—This is an application filed against the judgment and order dated 20.7.1991 passed by the learned Munsiff No. 1, Karimganj in Title Suit No. 317 of 1987 u/s 6 of the Specific Relief Act dismissing the suits with costs. The Judicial Magistrate Karimganj held that the suit was not maintainable inasmuch as the Plaintiff was not in exclusive possession of the property and no suit may be filed by such person u/s 6 of the Specific Relief Act.

Mr. Dhar appearing for the Petitioner submits that the trial Court i.e. Court below has proceeded in total disregard to the question of law involved in the aforesaid matter. He has submitted even a co-owner or a person in joint possession who has been dispossessed can rile a suit for relief u/s 6 of the Specific Relief Act. In support of his contention. Ballabh Das Vs. Gaur Das, He also refers to a decision of Calcutta High Court reported in AIR 1916 Cal. 562. The said judgment following the judgment of the Calcutta High Court has held as follows:

We see no reason to hold that the words of the section refer to exclusive possession. On the contrary, it seems to us that a person in joint possession of immovable property is as much in possession of that property as a person who is in exclusive possession, if the person who was in joint possession is dispossessed, there is, in our opinion no reason why he should not be entitled to bring suit under the section to be restored to that possession which he enjoyed before he was dispossessed. The first case relied upon by learned Counsel for Ballav Das, namely, the one in 19 CWN 120, has been explained by the Calcutta High Court in a later decision in 19 CWN 1117. It is significant that one of the learned Judges, Chatterjee J. who was a party to the later decision was also a party to the earlier one. It has been observed in the judgment in 19 CWN 1117 that the remarks as to exclusive possession made in the judgment of the earlier case must be read in reference to the facts of that case and that they were not intended to stand in the way of that joint physical possession being restored which existed before the disturbance.

As against the said judgment Mr. Das appearing for the opposite parties has referred to the judgment reported in AIR 1975 J&K 47, where it has been held that u/s 9 of the Old Act which is Section 6 of the present Act, it has been held that what is being intended was the exclusive possession and not joint possession and where it is not possible to get such a possession, the suit itself shall not be maintainable. The said judgment has considered both the Allahabad decision as well as Calcutta. I am inclined to agree with the ratio of Calcutta and Allahabad decision and hold that recovery of possession u/s 6 of the Act is not meant recovery of exclusive possession. Even if property is jointly possessed the suit is maintainable u/s 6. From the petition dated 21.4.1987 it appears that the Petitioner was in possession of the property and same was forcibly taken possession by opposite party. The said fact is obvious from the judgment dated 26.4.1991 passed by the Judicial Magistrate, 1st Class, Karimganj in C.R. Case No. 1119 of 1987.

In view of the aforesaid, I set aside the order passed by learned Munsiff dated 20.7.1991 in Title Suit No. 317 of 1987. I direct the Munsiff to rehear the matter on merit and dispose of the same.

The matter is disposed of. No costs.