Gobind Ram Jamna Dass vs Mst. Mewa

Gurnam Singh, J.—This revision petition has arisen out of a suit u/s 9, Specific Relief Act. The case of the Plaintiff is that he was dispossessed of the land by Mst. Mewa on 18-6-51 i.e. within 6 months from the institution of the suit. Mst. Mewa wife of Parbhati defendant-respondent resisted the suit. Three issues were framed by the trial Court. Issue No. 1 is the only relevant issue for the purposes of the decision of this revision petition and only it has been referred to by the parties. It reads as follows: "Was the Plaintiff illegally dispossessed within 6 months from the date of the suit by the defendant? On Plaintiff.

The learned trial Judge came, to the conclusion that Phusal P.W. cultivated the land in dispute as a tenant of the Plaintiff. It was Phusal, according to the finding of this Court, who was dispossessed by the Defendant respondent. The learned Judge came to this finding believing the evidence of Phusal which was supported by the revenue record. The lower Court then dismissed the suit of the Plaintiff on the ground that the Plaintiff was not actually dispossessed from the land in dispute, but it was Phusal who was dispossessed from it. In his opinion, there-fore, Section 9, Specific Relief Act had no application. The Plaintiff-Petitioner has come up in revision against this decision of the trial Court. This revision petition came up for hearing before any Lord the Chief Justice. It was urged before him that the view that a landlord cannot sue u/s 9, Specific Relief Act when only his tenant was dispossessed was wrong. As there was divergence of opinion on this question between the various High Courts my Lord the Chief Justice referred the case to a Division Bench,

The finding of the trial Court is that the person dispossessed from the land in suit was the tenant of the Plaintiff & not the Plaintiff him- self. The Plaintiff being not in possession at the time of dispossession was not competent to bring this suit and thus the suit u/s 9, Specific Relief Act was not maintainable. The trial Court for this reason dismissed the suit. Section 9 of the Act reads as follows:

If any person is dispossessed without his consent of immovable property, otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such a suit....

The object of this enactment is to provide a summary and speedy remedy for the recovery of possession of property to a person dispossessed without his consent and otherwise than through a process of law. In fact this legislation discourages people to take law in their own hands. A person claiming certain property must get its possession either with consent of the person in possession or by other legal means. The question of title in such a case is irrelevant; but the Court is to look to the possession at the time the person is dispossessed without his consent and by illegal means. In the present case the trial Court has found that the tenant of the Plaintiff was in actual physical possession of the suit land at the time he was forcibly dispossessed by the defendant. The question for determination, therefore, is whether possession of the tenant can be considered to be the possession of his landlord, the Plaintiff it cannot be doubted that the Plaintiff was in possession of the suit land through his tenants; in other words he was noting actual physical possession of the land but as in its constructive possession. The word used in Section 9 is ''dispossessed''. There is nothing in this section to show that the possession is confined only to actual physical possession. I am, therefore, of the opinion that a suit is competent by the landlord, even if he is not in actual physical possession of the land but in its possession through a tenant at the time of illegal dispossession. This conclusion is further strengthened by the words "he or any person claiming through him may, by suit, recover possession thereof" used in the section. The language of this section, therefore, clearly indicates that besides the person dispossessed, any person claiming through him can seek his remedy provided in this section for the recovery of possession. It necessarily follows that the person seeking relief u/s 9 need not himself be in actual physical possession of the property. A contrary view to this will defeat the aims and objects of this enactment. Supposing a landlord is incompetent to sue and his tenant who is dispossessed refuses to institute a suit u/s 9 of the Act, the landlord would be put in a very awkward situation and would be forced to file a regular suit. In such a case a wrong doer will naturally be placed in an advantageous position. To accept this position it would be put ting a premium on a wrong act of trespasser. This position, in my opinion, is not contemplated by the relevant legislation. On the other hand Section 9 provides for a speedy and summary remedy to recover possession taken away by unlawful means. The object of the legislation, besides this, is to place the parties in their original position. Trespasses if he so likes, can bring a regular suit to prove his title. A contrary construction, in my opinion, would result in protracted litigation for persons ousted from lawful possession by unlawful means on the part of a trespasser.

It is no doubt true that there is conflict of authorities as to whether a landlord can bring a suit for possession under this section when his tenant has been dispossessed; but the weight of authorities is in favour of competency of such a suit. A similar question came for consideration before a Bench of the Patna High Court and the learned Judges took the view that the landlord-could institute the suit when his tenant was dispossessed. In - Sailesh Kumar and Another Vs. Rama Devi and Others, , it was held,

Where a tenant is dispossessed by a trespasser, his landlord can maintain a suit u/s 9 against the trespasser for possession even when at the date of dispossession the property is in occupation of the tenant entitled to its exclusive use.

The learned Judges followed the decisions given in - ''Jadunath Singh v. Bishunath Singh'' ILR (1951) All 16 (B); - ''Ratanlal Ghelabhai v. Amarsing Rupsing'' AIR 1929 Bom 467 and dissented from a judgment in - Veerasami Mudali Vs. P.R. Venkatachala Mudali and Others, - ''Sita Ram v. Ram Lal'' 18 All 440 was distinguished. During the course of judgment, the learned Judges observed,

In support of his contention, he placed reliance on the case of ''18 All 440 (FB) (E)'' and Veerasami Mudali Vs. P.R. Venkatachala Mudali and Others, It is sufficient to state that the Allahabad case was not one u/s 9, Specific Relief Act, and it is beside the point in issue before us. The Madras case, however, supports the contention. That case is a single Judge case and it appears that in Madras High Court there are conflicting decisions on this point.

Same view of the law is taken by Oudh, Lucknow Bench of Allahabad High Court in 1950 All LJ 288 Nagpur and Bombay High Courts. The learned Counsel for the respondents cited before us Veerasami Mudali Vs. P.R. Venkatachala Mudali and Others, in which a contrary view is taken. As already observed by the learned Judges in the Patna case, decisions of the Madras High Court on this point are conflicting. I am in respectful agreement with the view adopted by the learned Judges in Sailesh Kumar and Another Vs. Rama Devi and Others, and am clearly of the opinion that the suit by landlord u/s 9 of the Act is competent when his tenant has been dispossessed without his consent and by unlawful means.

Learned Counsel for the respondent urges that this Court is not competent to interfere in revision. I see no force in this contention. In this case the trial Court dismissed the suit on the ground that the Plaintiff not being in possession was not competent to institute the suit. If the Plaintiff is entitled, as he is in my opinion, to institute such a suit u/s 9 of the Act, the finding of the trial Court to the contrary deprives him of his right to relief provided by Section 9 of the Act and the trial Court thus failed to exercise jurisdiction which it ought to have exercised. This Court, therefore, is competent to interfere in such circumstances. Section 9 itself shuts out the remedy, by way of appeal or review. If the intention of the legislature was to shut out a remedy by way of revision also it could have been similarly and specifically mentioned. But the Legislature has not done so. In my opinion, therefore, this is a fit case to warrant interference in revision.

Lastly the learned Counsel for the respondents urges that even if the Court below has made an erroneous order in law, this Court should not interfere in the exercise of its revisional powers, specially when another remedy is open to the Plaintiff. I see no force in this contention either and I am of the opinion that the availability of another remedy is not always a good reason to refuse to interfere in revision.

For the reasons stated above I set a side the judgment and decree of the Court below, allow this revision petition and, decree the suit of the Plaintiff. The parties will bear their own. costs.

Teja Singh, C.J.

I agree.