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Civil Rule No. 299 of 1962, decided on 20th May 1964.
S. 9‑Suit for possession-- Question of title cannot be raised in suit for recovery of possession under S. 9.
Nritto Lall Mitter v. Rajendro Narain Deb and others I L R 22 Cal. 562 distinguished.
Ramdayal Shamanto v. Upendra Nath Shamanto and another 17 C W N 501; Ganga Din v. Gokul Prasad A I R 1950 All. 407; Sona Mia and another v. Prakash Chandra Bhattachariya and others A I R 1940 Cal. 464 and Tamizuddin v. Ashrub Ali I L R 31 Cal. 647 ref.
Syed Badrul Alam for D. C. Bhattacharjee for Petitioner.
A. R. Khan for the Opposite‑Parties.
A. Rab (1) for the Deputy Registrar.
This Rule is directed against an order made by Mr. A. Hussain, Subordinate Judge, Mymensingh, on 30‑9‑61 dismissing the suit instituted by the plaintiff-petitioner under section 9 of the Specific Relief Act.
The petitioner's case is that his father Chand Mohan Das was a bharatia under the predecessor of the opposite‑parties Nos. 2 and 6 to 11, in respect of the suit land at a monthly rent of Rs. 18 per month. Owing to old age, the petitioner's father discontinued his business in the premises and the petitioner became a monthly tenant of the said premises and has been peacefully carrying on business for 15 years until he was dispossessed by the opposite‑parties on 25‑5‑57. It is alleged that on that day the petitioner left for his residence to take his meal locking up the shop room and during his short absence, the opposite‑parties forcibly entered into the shop room after breaking the lock. On his return after meal, he found himself out of possession. He instituted the present suit for recovery of possession.
No counter‑affidavit has been filed before me by the opposite parties. It, however, appears from the record that the suit was contested by the opposite‑party No. 1 Md. Afazuddin alias Afsaruddin who claims to have purchased the premises from one of the owner, Mukul Roy Chaudhry. His further contention is that the petitioner is not a bharatia tenant and that he was not in possession of the disputed premises and he claims to have been put into possession by his vendor.
The suit under section 9 of the Specific Relief Act was numbered as O. C. Suit No. 35/61
87/60
of the 3rd Court of the Subordinate Judge, Mymensingh. This suit was, however, tried along with a partition suit instituted by Md. Afazuddin in respect of the suit land and that suit was numbered as Partition Suit No. 34/61 . This petition has no concern with the
142/59
partition suit at all. In this case the judgment and decree in the suit under section 9 of the Specific Relief Act have been challenged.
On a careful analysis of the evidence adduced on behalf of both the parties, the learned Subordinate Judge recorded a firm finding in regard to possession of the petitioner and his subsequent dispossession in the following terms:‑
"I find that the plaintiff Devendra Chandra Das was in possession prior to his dispossession on 25‑5‑57. I cannot accept the defence evidence that plaintiff had no business and the shop remained locked for years together."
He also found that "in the circumstances, the defendants Afaz and others were the persons making the dispossession. He also observed that the suit was instituted within six months from the date of dispossession and that the suit was not, therefore, barred by limitation. After having found that all the elements necessary for obtaining an order under section 9 of the Specific Relief Act being present, the learned midge dismissed the suit only on the ground that the petitioner being a trespasser cannot invoke the aid of section 9 of the Act as against the opposite‑party who is a rightful owner of the suit land. In the context of the material findings recorded by the learned Judge, I will now proceed to consider as to whether the petitioner can maintain the suit.
Section 9 of the Specific Relief Act is in the following terms:
"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 suit."
Expression used in the section is "any person". The petitioner Debendra Mohan Das, even if he is a trespasser, it cannot be denied that he is a person. Then the section proceeds to say "if any person is dispossessed without his consent of immovable property otherwise than in due course of law" he may institute a suit for recovery of possession.
In this case the learned Judge as quoted above, has found that the petitioner was in possession and that he was dispossessed without his consent, and dispossession took place in respect of immovable property. On these findings it is apparent that dispossession took place "otherwise than in due course of law." The expression "in due course of law" does not mean dispossession by physical force or forcible entry by breaking open the lock. In this case even if the opposite‑party No. 1 Afazuddin can claim to be owner of the suit land by virtue of his purchase from Mukul Roy Chaudhry, he cannot dispossess the petitioner by force. He has to take appropriate legal steps for eviction of the person in possession. This he has not done. He has, therefore, dispossessed the petitioner "otherwise than in due course of law." I have sufficiently indicated that on the facts found by the learned Judge that section 9 of the Specific Relief Act is applicable to this case. The learned Judge has however, dismissed the suit on the ground that the person who dispossessed him, is the owner of the suit land and the petitioner being a trespasser is entitled to maintain a petition under section 9 against the whole world but not against a person who is a rightful owner of the suit land. The learned Judge seems to have ignored the concluding words of section 9 of the Specific Relief Act. The expression "notwithstanding any other title that may be set up in such suit" clearly indicates that question of title to the land cannot be raised in this suit for recovery of possession.
That being so, the learned Judge failed to exercise the jurisdiction vested in him to grant recovery of possession on the erroneous view that a suit under section 9 of the Act is barred against a rightful owner. I must say that the learned Judge proceeded to examine the evidence very carefully and reached the conclusions indicated above as a result of close examination of the evidence; but he failed to give relief merely because, he erroneously thought that title could be pleaded in bar of a suit of this 4ature. I have sufficiently indicated that the Law is otherwise.
The learned Judge relied on the case of Writto Lall Mitter v. Rajendro Narain Deb and others (I L R 22 Cal. 562), in support of his finding that such a suit cannot be maintained by a trespasser as against a rightful owner. I do not find any such decision in the case referred to by him. In that case the petitioner claimed his right to possession through his father. He did not claim his own possession. When it was pointed out that a suit under section 9 can be maintained only by a person in possession, a prayer was made for amendment of the plaint and the learned Judge refused that permission and dismissed the suit observing "It seems to me that would be to permit the plaintiff to set up an allegation totally inconsistent with the case on which he came to Court and I should not allow it at this stage."
In the case before me, the petitioner did not claim possession through his father. The petitioner has proved to the satisfaction of the trial Court that he was himself in possession of the suit land. It was not necessary for him to prove tenancy as well.
The learned Judge's finding that the plaintiff‑petitioner "was not a monthly bharatia tenant in the holding" cannot be sustained in law, for, any discussion in respect of title to the holding is beyond the scope of this suit for recovery of possession and it has been rightly claimed by Mr. Badrul Alam that the petitioner will not be bound by the same. In view of what I have just stated it is not necessary for me to further consider the argument of Mr. Alam that the finding relating to title is the result of improper consideration of the evidence inasmuch as due weight has not been given to the rent receipts which also bear the name of the petitioner. To do so would be to trespass into the field of a suit for declaration of title.
Be that as it may, the tenancy not being in issue in the suit it is sufficient that the petitioner was in possession on the relevant date. The view expressed by me to the effect that the question of title cannot be raised in this suit, finds support in a Division Bench decision consisting of Chitty and Teunon, JJ., in the case of Ramdayal Shamanto v. Upendra Nath Shatnanto and another (17 C W N 501). In that case the learned Judges observed:‑
"Having regard to the clear words of section 9 of the Specific Relief Act we think that the Munsif's decision is more than a mere error of law, it was rather a refusal to exercise jurisdiction vested in him. That section says that a person dispossessed without his consent of immovable property otherwise than in due course of law may by suit recover possession thereof notwithstanding any other title that may be set up in such suit. The Munsif here finds that the plaintiff was in possession within the six months required by the section; and he goes into the question of title and on that ground has refused to grant the plaintiff the relief prayed for, to which on the finding as to possession the plaintiff' was entitled.
The order of the Munsif in that case was set aside and the decree for possession as asked for was given.
The same view was expressed in the case of Ganga Din v. Gokul Prasad (A I R 1950 All. 407), In that case it was held as follows:
"It is clear that in a suit under section 9 the only allegations that are relevant are those of a person's 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, therefore, of this provision in section 9 is that even if the defendant has a better title than the plaintiff he cannot resist the plaintiff's suit for recovery of possession if the plaintiff proves the allegations made by him."
Mr. Badrul Alam learned Advocate appearing for the petitioner has placed his reliance on the case of Sona Mia and another v. Prokash Chandra Bhattachariya and others (A I R 1940 Cal. 464), in support of his contention that the learned Subordinate Judge erroneously dismissed the suit because of the alleged title of the defendants. In that case Sen, J., observed as follows:
"I am inclined to accept this view, section 9, Specific Relief Act, comes into operation only for a limited purpose. It cannot be invoked unless the defendants have deprived the plaintiffs of actual physical possession. This section has nothing to do with questions of title."
Mr. Badrul Alam. has also placed his reliance on a Full Bench case of Tamizuddin v. Ashrub Ali (I L R 31 Cal. 647). In that case Ghose, J., observed in the following terms:
"There is a clear distinction between a possessory action such as section 9 of the Specific Relief Act contemplates, and an action upon title. And when the tenancy of a non-occupancy raiyat is not put an end to, as the law requires, he remains upon the land as a tenant, and necessarily, if he is illegally ejected, he is entitled to claim possession as a tenant, his title being that of a tenant of the land. His position is very different from that of a person, who enters into the land as a trespasser, but who, if evicted illegally, is entitled to be put back in possession according to the provisions of section 9 of the Specific Relief Act, though he has no title to the land". In that case Prinsep, J. observed as follows:
"The right to hold possession as against an illegal dispossession is one which in a possessory suit under section 9 of the Specific Relief Act is with any person, who can prove an illegal dispossession. The law protects him against the illegal dispossession quite independently of any title on which he may claim to hold it. He has a right to remain there as against the dispossessor, even though such person may have a superior title. In a possessory suit under section 9 of the Specific Relief Act the question of title to the land in suit cannot be raised."
This is exactly what the learned Subordinate Judge has allowed to be raised and consequently reached erroneous conclusion in law.
Mr. A. R. Khan appearing for tile opposite‑parties frankly concedes that in view of the findings of fact relating to possession arrived at by the learned Subordinate Judge, the suit cannot be dismissed on the ground that person who dispossessed the petitioner was the owner of the land.
Mr. A. Rab learned Advocate for the minor opposite‑parties Nos. 9 and 10 also supported the contention of Mr. Badrul Alam.
For the reasons stated above, the Rule is made absolute the judgment and decree of the learned Subordinate Judge are set aside and I pass a decree for the plaintiff for possession of the suit land as prayed for with costs in this Court as well as in the trial Court, hearing fee of this Rule being assessed at three gold Mohurs.
S.Q. Rule made absolute.
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