Munshi vs Mangoo

D.D. Thakur, J.—Munshi and Mangoo are two brothers admittedly co-sharers in a khewat. A dispute arose regarding their possession over

Khasra No. 1433 measuring 1 Kanal and 14 marlas situate in the village of Nonath Tehsil Hiranagar. Alleging that the plaintiff was in possession of

whole of this land and the defendant dispossessed him from a piece of 10 marlas out of this Khasra No. the plaintiff filed a suit in the court of

Munsiff Hiranagar, u/s 9 of the Specific Relief Act (hereinafter called ""the Act""). The suit was filed on 26-3-1969. There was no prayer regarding a

decree for possession in respect of the remaining 1 kanal and 4 marlas of land. Subsequently, however, on 8-4-1969 when the suit was pending,

the plaintiff made an application before the Tehsildar, Hiranagar, stating therein that he was in possession of 1 kanal and 4 marlas of land from

khasra No. 1433 min but girdawari entries did not show him in possession. He, therefore, prayed that the entries in the girdawari may be

corrected. The Tehsildar vide his order dated 19-4-1969 transferred this application to the Naib Tehsildar for enquiry. Before the Naib Tahsildar

a number of witnesses appeared both for the plaintiff and the defendant. The two witnesses out of those produced by Mangoo also supported the

case of the defendant regarding the defendant being in possession of the entire land. The Naib Tehsildar therefore found the defendant in

possession of the entire land measuring 1 kanal 4 marlas and refused the prayer of the plaintiff for correcting the entries in the girdawari. The

plaintiff left the proceedings there and did not go up in appeal or revision against the finding of the Naib Tehsildar. He, however, made"" an

application before the Munsiff seeking an amendment in the plaint. This application for amendment was made by him on 12-5-1969 in which he

stated that by an accidental error only 10 marlas instead of 1 kanal and 14 marlas were included in the suit, otherwise, as a matter of fact, the

whole of the land falling under khasra No. 1433 Min was taken possession of by the defendant unauthorisedly five days before the institution of the

suit. After the amended plaint was filed the parties went to trial. Various issues which were framed by the trial court were ultimately decided by the

Munsiff vide his judgment impugned in this revision application.

It is worthwhile to note here that a copy of the report made by the Naib Tehsildar holding the defendant in possession of the land was also

produced before the Munsiff, but the Munsiff has not made any mention of that report in the judgment.

I would not have ordinarily interfered with the decree passed by the court below being fully conscious of the fact that there is very little scope to

interfere with a finding of fact recorded by the trial court on an appreciation of the evidence. But the whole approach adopted by the learned

Munsiff in dealing with this case appears to me to be erroneous. The error appears to be manifold. First that it was neither the case of the plaintiff

nor of the defendant that the land in question was in their joint possession. Either party claimed to be in exclusive possession of the land. The

learned Munsiff therefore was hardly in a position to come to a finding that the land was jointly in possession both of the plaintiff and the defendant.

The plaintiff had to fail or succeed on the case put forth by him in the plaint. In the course of the trial of a civil suit in which the issue is whether the

plaintiff was in exclusive possession of the land in dispute and whether he was dispossessed therefrom within six months prior to the date of the

institution of the suit the finding could either be that he was in possession within the aforesaid period and was dispossessed forcibly or that he was

not in possession. This has not been done in this case.

Secondly an important document having substantial bearing on the question of possession was placed on the record which finds no mention in

the judgment of the court below. That document was a copy of the report made by the Naib Tehsildar holding the plaintiff out of possession of the

land in question.

Thirdly assuming for the sake of argument that it was within the competence of the Munsiff to come to a finding that the parties were in joint

possession of the land, it was in my opinion not legally correct to have passed a decree for the khas possession after holding the parties to be in

joint possession within six months prior to the date of the institution of the suit.

The learned Munsiff while holding that the parties were in joint possession held the suit u/s 9 of the Act maintainable but in the operative portion

of the judgment he granted a decree for khas possession to the plaintiff. The operative portion of the judgment reads thus:

In the result, the plaintiff is entitled to a decree to be restored to possession of the land as claimed in the last para of the plaint, upon which the

defendants have invaded and forcibly constructed a hut (Chhanni) on 10 marlas of land in possession of the plaintiff. In the interest of justice the

defendants are directed to remove the Hut and other material placed on the land in dispute at their own cost within one month from today.

A perusal of the last para of the amended plaint would show that the plaintiff had sought a decree for khas possession of the land measuring 1

kanal and 14 marlas and not the joint possession of the said land. The learned Munsiff therefore travelled clearly beyond the purview of his

judgment and made the decree wholly contradictory to the findings returned by him in the judgment. This was an approach suggestive of lack of

application of the mind on the part of the Munsiff. The decree passed by the Munsiff, therefore cannot be sustained at all.

The learned Munsiff while holding the suit for joint possession maintainable u/s 9 of the Act, placed reliance on two judgments, one of the

Calcutta High Court in Mt. Ajiman Bibi v. Reasat Sheikh reported as AIR 1916 Cal 562 and the other of the Allahabad High Court, in Ballabh

Das Vs. Gaur Das, . I have gone through both these authorities. In addition I have come across two judgments of the Judicial Commissioner's

Court at Nagpur in Ghotti v. Sitku, reported as AIR 1917 Nag 31 and AIR 1922 115 (Nagpur) . There is no doubt that in all these judgments the

courts have held that a person in joint possession, if dispossessed otherwise than in due course of law, can maintain a suit u/s 9 of the Act. The

footing on which the aforesaid judgment proceeds is that Sec. 9 of the Act does not make a distinction between a joint possession and an exclusive

possession. According to these authorities a person in joint possession of immovable property is as much in physical possession of the property as

a person in exclusive possession. For the sake of precision regarding the reasoning adopted by the aforesaid courts I might quote the following

para from the judgment of the Calcutta High Court in AIR 1916 Cal 562:

The object of Section 9 of the Specific Relief Act is ""to provide a speedy remedy for that class of cases where person in physical possession of

property is forcibly dispossessed from it against his will and consent."" See Tarani Mohun Mozumdar v. Gunga Prosad Chuckerbuty, ILR (1887)

14 Cal 649. The main question for determination therefore in a case under this section is whether the plaintiff while in the physical possession of

property has been dispossessed of the same in the manner and within the time specified in the section. If he was in physical possession he can be

restored to such possession under the decree of the Court. A man in joint possession of immovable property is as much in physical possession of

his share as the entire body of co-sharers are in physical possession of the whole and such joint possession can as well be physically restored in

respect of his share as the possession of the whole can be restored to the entire body of co-sharers.

Similarly the Allahabad High Court in Ballabh Das Vs. Gaur Das, observed as under :

The words of Section 9 do not refer only to exclusive possession. A person in joint possession of immovable property is as much in possession of

that property as a person who is in exclusive possession and if the person who was in joint possession is dispossessed, there is no reason why he

should not be entitled to bring a suit under the section to be restored to that possession which he enjoyed before he was dispossessed.

The reasoning in the Nagpur authorities cited above is almost on the same lines.

To my mind it appears that the view taken by the Calcutta and Allahabad High Courts and the Judicial Commissioner's Court at Nagpur in

regard to the true scope of Section 9 of the Act does not fit in with the purpose, the object and the idea underlying, that section. There can be no

two opinions that Section 9 of the Act was intended to provide a summary remedy to a person aggrieved of his dispossession from the property

otherwise than in due course of law. So long therefore as a decree passed u/s 9 of the Act does not succeed in serving the purpose which

provided a basis for the provision a resort to Section 9 would not only be an exercise on illusion but an absolute dissipation of time, energy and

expense of the parties and the court. A decree for joint possession whether passed on the basis of title or u/s 9 of the Act has been made

executable under O. 21, R. 35. sub-rule (2) of the Code of Civil Procedure. Sub-rule (2) of the said rule reads thus:

(2) Where a decree is for the joint possession of immovable property, such possession shall be delivered by affixing a copy of the warrant in some

conspicuous place on the property and proclaiming by beat of drum, or other customary mode, at some convenient place, the substance of the

decree.

A bare reading of sub-rule (2) would make it manifest that even despite the existence of a decree for joint possession a person entitled to joint

possession does not in fact get, the physical possession jointly with the person already in possession. A fixation of a copy of warrant of possession

in some conspicuous place on the property and the proclamation by beat of drums or other customary mode, at some convenient place regarding

the decree having been passed and the joint possession having been delivered does not in substance put the decree-holder in physical possession

of the property. Such a decree in my opinion is declaratory in character and declares only the title of the decree-holder to remain in possession and

the only effective remedy available to the decree-holder would be a suit for partition. In the suit for partition which becomes an indispensable

remedy for the holder of a decree for joint possession the question of title is again to be gone into as it could not be deemed to have been settled in

the suit u/s 9 of the Act, such a question being wholly extraneous to such a suit. Where then is the benefit, which possibly can be said to have

accrued to the holder of a decree for joint possession? In my opinion none as such a decree could not operate as res judicata in a subsequent suit

for partition based or resisted on the ground of title.

Even in case of agricultural holdings, where the partition is possible, by an application u/s 105 of the J. & K. State Land Revenue Act the

position would not improve consequent upon a decree for joint possession u/s 9 of the Act. In such an event the question of title could very well be

raised u/s 111-A of the Land Revenue Act to be determined by the civil court or by the Revenue Officer himself by following the procedure laid

down in the Civil P. C. for the trial of the original suits. The whole proceedings therefore right from the date of the institution of the suit under Sec.

9 of the Act till the date of the final execution of the decree under Order 21, Rule 35, sub-rule (2) of the Civil P. C. could constitute an extremely

painful loss of labour. The legislature could never be presumed to have intended to enact a provision a resort to which would lead a person

nowhere. Such an absurdity has therefore to be avoided by placing an interpretation on Section 9 of the Act which would further rather than

negative the purpose of the section. A decree for joint possession could not therefore fall within the purview of Section 9 of the Act.

The right of a plaintiff in a suit u/s 9 of the Act to recover possession of the property does not stand vindicated by a decree for joint

possession. The purpose of the section to restore a dispossessed plaintiff to the position which obtained before the date of his dispossession is not

and cannot be served by a decree for joint possession. The words ""may by suit recover possession thereof notwithstanding any other title that may

be set op in such suit"" occurring in Section 9 of the Act refer to the recovery of exclusive possession and not of joint possession and where it is not

possible to get such a possession the suit itself shall not be maintainable. The observations made by the Calcutta and Allahabad High Courts in the

two judgments quoted above i.e. ""if he was in physical possession be can be restored to such possession under the decree of the court,"" appear to

have been made in total disregard to the provisions of Order 21, Rule 35 sub-rule (2) of the Civil P. C. under which it was not possible in fact to

restore a person to the position which be held before the date of dispossession. I am not therefore in a position, with greatest respect to their

Lordships of the aforesaid High Court to agree with them on the true scope and the purview of Section 9 of the Act.

I am conscious that I have not come across any authority which could provide support to the view which I am taking. The only authority

reported as AIR 1914 Cal 496 was indirectly overruled in the later judgment of the same High Court reported as AIR 1916 Cal 562, but I feel it

is not always a judgment in a decided case which lends sustenance to a conclusion but the reasons which support it.

I could on the basis of my view in regard to the scope of Section 9 of the Act set aside the decree and dismiss the suit of the plaintiff but as

stated earlier even the approach adopted by the learned Munsiff in appreciating the evidence was defective; therefore the proper course to be

adopted in this case is to set aside the judgment and decree of the lower court and remand. the case to it for a fresh disposal according to law in

the light of the observations made above. Keeping in view the circumstances of the case I leave the parties to bear their own costs.