Innasi Pillai vs Sivagnana Desikar alias Gnana Sambanda Panda Sannadhi and Others

Muthusami Aiyar, J.—This was a suit brought by petitioner u/s 9 of the Specific Belief Act. The villages mentioned in the plaint are Inams

attached to the temple on the rock at Trichi-nopoly. First counter-petitioner is the Pandara Sannadhi, who manages them on behalf of the temple,

and 2nd and 3rd counter-petitioners are Tambirans, who are his agents. The villages are in the occupation of persons who cultivate them and pay

the temple the rent due upon them. On the 4th October 1889, 1st counter-petitioner''s agent leased them to petitioner for a period of five years,

and in pursuance of the lease, petitioner collected rent from the tenants till 15 days prior to the suit. Petitioner''s case was that the instrument of

lease provided that if default were made in the punctual payment of rent, the lessee should at once surrender the lease and his possession, that

although petitioner regularly paid rent, 1st and 2nd counter-petitioners improperly cancelled the lease on the pretence that he failed to pay rent

punctually, that 4th and 5th counter-petitioners since obtained a lease from 1st counter-petitioner and began to collect rent under it from

petitioner''s tenants and by so doing, dispossessed him, otherwise than, in due course of law. The plaint prayed that possession might be restored

to petitioner u/s 9 of the Specific Belief Act. The Acting District Judge held that Section 9 referred to physical and not constructive possession; and

that petitioner was not entitled to enforce, under that section, his right to collect the melvaram.

It is admitted before me that petitioner''s right is restricted to receipt of melvaram or rent, and the parties in actual possession to ryots with rights

of occupancy. It is urged on petitioner''s behalf that the collecting of rents by counter-petitioner in collusion with his tenants so as to deprive him of

the fruit of his lease constituted sufficient dispossession within the meaning of Section 9.

In support of his opinion the Judge relies on the decision in Tarini Mohun Mozumdar v. Gunga Prasad Chuckerbutty I. L. R. (1887) C. 649 and

distinguished it from the decisions in Krishna v. Akilanda I. L. R. (1889) M. 54 and Bhundal Panda v. Pandol Dos Patil I. L. R. (1887) B. 221 On

petitioner''s behalf, my attention is drawn to the definition of ""immovable property"" in the General Clauses Act and to the decisions in pramatha

Bhusana Deb Roy v. Doorga Churn Battacharji I. L. R. (1885) C. 413 and Ramasami v. Danakoti Ammal I. L. R. (1888) M. 88 and two other

decisions u/s 145 of the Code of Criminal Procedure. I do not think that the decision of the Judge can be supported. It is opposed to the ground

on which the cases of Ramasami v. Danakoti Ammal I. L. R. (1888) M. 88 and Krishna v. Akilanda I. L. R. (1889) M. 54 were decided. In the

latter, it was held that the expression "" Immoveble property "" used in Section 9 should be construed to be what it is defined to be in the General

Clauses Act; and a divisional bench of this Court observed in the former that a dispute between two persons as to the right to collect rents from the

tenants in possession is cognizable u/s 145 of the Criminal Procedure Code and is a dispute concerning tangible Immovable property within the

meaning of that section. In Krishna v. Akilanda I. L. R. (1889) M. 54 a right of ferry was held to be Immovable property. According to Section 2,

Clause 5 of the General Clauses Act, Immovable property includes benefits arising out of land and receipt of rent comes within the purview of that

definition.

According to Section 2, that definition must be read as part of the Specific Belief Act unless there be something repugnant in the subject or

context. The real question is whether there is anything repugnant in the subject or context. In Section 9 of the Specific Belief Act, the words

possession and dispossession"" occur and receipt of rent is the ordinary form in which many landholders enjoy their land. Again, the words

recover possession"" are also used in Section 9; and Section 5 specifies the several forms in which specific relief may be given. An order under the

last mentioned section to pay rent as heretofore to plaintiff and not to pay rents to defendants until the latter dispossess the former in due course of

law, is sufficient to restore possession. I do not see why specific relief in that form should not be given, and why possession should be taken to

mean physical possession only and to exclude constructive possession. To hold that constructive possession is not possession, would deprive a

large body of landholders in this Presidency of the protection of the Act. It is true that in Tarani Mohun Mozumdar v. Gang a Prasad Chukerbutty

I. L. R. (1887) C. 649 it was held that mere discontinuance of payment of rent does not constitute dispossession within the meaning of Section 9,

but it seems to me that every landholder holding possession by a tenant and every tenant holding actual possession under him understands by

possession, not merely actual possession, but also receipt and payment of rent. If the tenant colludes with another and pays him rent, denying his

real landholder''s right to rent, it would, in common parlance among the agricultural classes, amount as much to dispossession as the deprivation of

physical possession.

Suppose a tenant holding under a lease from year to year, or for a term of years, suffers eviction in collusion with a stranger and pays rent to the

latter and refuses to pay the same to the real landlord; if the colluding tenant will not sue, is the landlord without any summary remedy? Under the

general law, neither the tenant nor the stranger will be permitted to deny the landholder''s title and set up an adverse title until possession is restored

to the landlord. It is then said that the case premised is a case in which there is no occupancy right, but it must be observed that the case is

pertinent to this extent, viz., that in both cases, the landholder''s possession is constructive, and if it is a legitimate ground of complaint u/s 9 in the

one, it is so in the other. I am inclined to agree in the observations of the minority of the learned Judges who decided the case of Fadu Jhala v.

Gour Mohun Jhala I. L. R. (1892) C. 544 In B hundal Panda v. Pandol Pos Patil I. L. R. (1887) B. 221 the right to fish was recognised as being

within the definition of the General Clauses Act. The right to work a ferry and the right to fish are not distinguishable from the right to collect rent in

so far as they are all within the purview of the definition of Immovable property in the General Clauses Act.

At all events I am bound to follow the course of decisions in this Court until the Full Bench modifies them.

Another objection is that the tenants in occupation are not made parties to this suit. This is a defect which is not too late to amend. This

objection was not taken in the written statement and as the suit was dismissed on a preliminary point, I set aside the order of the District Judge and

remand the case for disposal on the merits. The costs of this petition will abide and follow the result.