Saraswati and another vs Bindraban

Mian JalalUdDin, J.

(1) The revison is directed against the judgment of Sub Judge Reasi decreeing the plaintiff's suit for possession of the suit land under sec. 9 of the

Specific Relief Act.

(2) Briefly speaking a suit for restoration of the possession of the land measuring 18 Kanals and 2 Marias, as described in the plaint, was instituted

under the provisions of Section 9 of the Specific Relief Act by Bindra Ban against Amir Chand and others with the allegation that the plaintiff had

been in peaceful possession thereof since 2011 BK. on the basis of an agreement to sell when on 12th of August 1966 the defendants took

forcible possession of the land and dispossessed the plaintiff otherwise than in due course of law and without his consent. The defendants denied

the act of dispossession by them. They also denied that the plaintiff had been in possession of the property in dispute within six months, next before

the institution of the suit. The trial court held that there was sufficient proof available about the execution of the agreement to sell the disputed land

in favour of the plaintiff and in was in pursuance of the agreement to sell that the plaintiff had been in possession of the suit property till 12th of

August 1966. The court also held that the defendants forcibly occupied suit property otherwise than in due course of law. The plaintiff, was

therefore, found entitled to a decree for possession.

(3) The only point that has been canvassed before us in this revision petition is that the defendants being the owners of the suit property no suit for

possession could lie against them and the trial court was not justified in passing the decree against the defendants. The position of the plaintiff was

only that of a trespasser. It is, however, conceded that the plaintiff has been in possession, of the suit property for a number of years but his

possession, it is urged could not ensure for his benefit and he could not maintain the suit on the basis of possessory right against the true owner.

Possession was good against all the world except the true owner. Therefore if the defendant has obtained the possession of the suit property even

by dispossessing the plaintiff trespasser his act was justified and the court could not pass a decree for restoration of possession in favour of the

plaintiff.

(4) In my opinion the argument is misconceived and must therefore be rejected. The present suit was instituted under section 9 of the Specific

Relief Act. It was in the nature of a summary suit for possession of property as contemplated by Section itself. It is well known that the basis for

such a suit is wrongful dispossession of the plaintiff by the opposite party. The scope of such a suit is limited. It is to be brought within six months

from the date of dispossession and any question of title would be wholly extraneous to such a summary suit. There is no authority for the

proposition that in such a suit the question relating to title or ownership can be raised and determined AIR 1964 SC 685 relied upon by the learned

counsel for the petitioner cannot be said to be an authority as laying down law under section 9. That was a case which related to the writ

jurisdiction of the High Court and the court had in exercise of its discretion under Article 226 passed the order. If the argument of the learned

counsel is accepted that the owner can resist the suit on the ground that he is the virtual title holder of the property, then incidentally it would follow

that the court shall have to decide the question of title in his case. It is clear that the determination of this question would be wholly outside the

scope of Section 9 of the Specific Relief Act and if allowed would convert the summary suit into title suit which would in fact render the very

provisions of Section 9 nugatory. There is difference between a suit on the basis of possessory right as contemplated by Section 9 of the Specific

Relief Act and a suit based on possessory title. In XIII Indian Law Reports (Allahabad) 537 a full Bench of the High Court of Allahabad ruled that

Section 9 of the Specific Relief Act is intended to provide a special remedy for a person who, being, whatever his title in possession of immovable

property, is ousted therefrom. It is useful 10 reproduce some of the observations made in the aforesaid judgment. Straight J observed as under:

''What is Section 9 of the Specific Relief Act? It only reproduces the rule which says that a person having a right to which wrong has been inflicted,

is entitled to come into court and assert that right. If my brother Mahmood J's reading of Sec. 9 of the Specific Relief Act is correct, then it would

be practically precluding the suit contemplated by Art 142 of the Limitation Act. What S. 9 of the Specific Relief Act intended to do and in my

opinion does, is to provide a summary and speedy remedy though the medium of the civil court for the Restoration of possession to a party

dispossessed by another, leaving them to fight out the question of their respective titles if they are so advised. This Section 9 is no more than a

reproduction of a provision of the Roman Law by which praetor was entitled to restore possession to a person who had been forcibly

dispossessed of property. It was though and wisely thought that if power was not given to the Civil Courts to afford this speedy remedy, most high

handed and intolerable cases of dispossession might occur, with the result that the intruder, having forced himself into possession, might snap his

fingers and say ''here lam in possession ; prove your title and do your worst."" It would neither be justice, equity good conscience, nor common

sense to recognise or tolerate any such doctrine and I for one decline to do so.

(5) A Division Bench of Allahabad High Court in AIR 1955 All. 407 held that in a suit under section 9 the only allegation that are relevant are

those of the plaintiffs previous possession and his dispossession by the defendant. The title of the parties is not relevant and indeed it is specifically

provided that the section does not bar any person from recovering possession of the property on the basis of his title The result of this provision in

Section 9 is that if the defendant has a better title to the plaintiff he could not resist the plaintiff's suit for recovery of possession if the plaintiff proves

the allegation made by him.

(6) A similar question came up for consideration before their Lordships of the Supreme Court reported in AIR 1968 SC 621. The case law on the

subject was reviewed Their Lordships quoted with approval the following observations made by Chagla C. J. in K. K Verma Vs. Narain Dass C.

Malkani AIR 1954 Bombay 353 at page 360 and also the observations of the Full Bench of Allahabad High Court (AIR 1959 All. 1 at page 4.)

(7) In AIR 1954 Bombay 358 Chagla C. J. had observed as under:

''Under the Indian Law the possession of a tenant who has ceased to be a tenant is protected by law. Although he may not have a right to continue

in possession after the termination of the tenancy his possession is a juridical and the possession is protected by statute. Under Section 9 of the

Specific Relief Act a tenant who has ceased to be a tenant may sue for possession against his landlord if the landlord deprives him of possession

otherwise than in due course of law, but a trespasser who has been thrown out of possession against the true owner.

(8) Again in AIR 1559 All. 1 at page 4 it has been held:

No question of title either of the plaintiff or of the defendant can be raised or gone into in that case (under Section 9 of the Specific Relief Act)

The plaintiff will be entitled to succeed without proving any title on which he can fall back upon and the defendant cannot succeed even though he

may be in a position to establish the best of the titles. The restoration of possession in such a suit is, however, always subject to a regular title suit

and the person who has the real title or even the better title cannot, therefore, be prejudiced in any way by a degree in such a suit. It will always be

open to him to establish his title in a regular suit and to recover back possession.

The High Court further observed:

Law respects possession even if there is no title to support it. It will not permit any person to take the law in his own hands and o dispossess a

person in actual possession without having recourse to a court No person can be allowed to become a judge in his own cause. As observed by

judge C. I. in Wali Ahmad Khan V. Ayodhya Kundu (1891) AIR 13 All. 537 at page 556.

The object of the Section was to derive that person who wanted to eject a person into the proper court and to prevent them from going with a high

hand and ejecting such person.

(9) After reviewing the case law enunciated by several High Courts the Supreme Court ruled that the law on this point had been. Correctly stated

by the Privy Council, by Chagh C. J and by the Full Bench of the Allahabad High Court in the cases mentioned above.

(10) In the instant case the Court below has found that the plaintiff was not a trespasser but he was holding the suit property on the basis of an

agreement to sell in his favour and that he had been in possession of the property for a number of years before the act of dispossession. The

defendants forcibly dispossessed him by taking law in their own hands and by asset ting their title over the property which they could not do. The

suit has been found to have been brought within the statutory period as provided by Section 9 of the Specific Relief Act. The court below has,

therefore, rightly decreed the suit which decree we accordingly affirm.

(11) The result is that there is no force in this revision petition which is dismissed with costs