A suit for possession of immovable property under section 6 of the Specific Relief Act is not covered by section 41 of the Presidency Small Causes Courts Act, 1882, because the question of title is irrelevant in such suits.

Headnote:
PRESIDENCY SMALL CAUSES COURTS ACT, 1882 - SECTION 41 - SPECIFIC RELIEF ACT, 1877 - SECTION 6 - JURISDICTION - SUIT FOR POSSESSION OF IMMOVABLE PROPERTY - WHETHER COVERED BY SECTION 41 OF THE PRESIDENCY SMALL CAUSES COURTS ACT, 1882 - HELD, NO.
Fact of the Case:

Plaintiffs filed a suit for possession of a godown under section 6 of the Specific Relief Act, alleging dispossession without due process of law. The City Civil Court returned the plaint, holding that the suit fell under section 41 of the Presidency Small Causes Courts Act, 1882, and thus the Small Cause Court had jurisdiction.
Finding of the Court:

The court held that the suit under section 6 of the Specific Relief Act was not covered by section 41 of the Presidency Small Causes Courts Act, 1882. The court reasoned that the question of title was irrelevant in a suit under section 6 of the Specific Relief Act, and thus such a suit did not fall within the ambit of section 41, which dealt with suits between licensor and licensee or landlord and tenant relating to recovery of possession of immovable property.
Issues: Whether a suit for possession of immovable property under section 6 of the Specific Relief Act is covered by section 41 of the Presidency Small Causes Courts Act, 1882.
Ratio Decidendi: The court held that section 41 of the Presidency Small Causes Courts Act, 1882, did not apply to suits under section 6 of the Specific Relief Act because the question of title was irrelevant in such suits. The court distinguished the present case from earlier decisions that had held that suits under section 6 of the Specific Relief Act were covered by section 41 of the Presidency Small Causes Courts Act, 1882, on the ground that those decisions had failed to consider the irrelevance of title in suits under section 6 of the Specific Relief Act.
Final Decision: The court directed that the record and proceedings of the appeal be placed before the Chief Justice for referring the same to a Larger Bench.

JUDGMENT - C.S. DHARMADHIKARI, J.:---The appellants-plaintiffs filed a suit for possession of the suit property being Godown No. 10 on Plot No. 176. Reti Bunder, Darukhana, Bombay 10. It is the case of the plaintiffs that they were in exclusive possession of the suit premises, but were dispossessed some time in November, 1981. Therefore, they filed a suit for restoration of possession under section 6 of the Specific Relief Act on the basis that they were in possession within six months before the date of the suit and were dispossessed without due process of law. It is not necessary to make a detailed reference to other averments made in the plaint.

2. The defendants resisted the suit on various grounds and also raised a preliminary contention that the City Civil Court has no jurisdiction to entertain and decide the suit. The City Civil Court came to the conclusion that the suit squarely falls under the provisions of section 41 of the Presidency Small Causes Courts Act, 1882, hereinafter referred to as the Act, and therefore, the Small Cause Court alone will have the jurisdiction to entertain and try the suit and hence passed an order returning the plaint for its presentation to the proper Court. It is this order of the City Civil Court dated 18th of May, 1982 in Notice of Motion No. 1173 dated 12th of March, 1982 in Cause Suit No. 132 of 1982, which is challenged in the present appeal.

3. Shri Gursahani, learned Counsel appearing for the appellants contended before me that the City Civil Court has committed an error in coming to the conclusion that it has no jurisdiction to entertain and try the suit, which was under section 6 of the Specific Relief Act. According to Shri Gursahani various averments made in the plaint were in the nature of History and background of the litigation and in substance the suit was filed against the trespasser based on prior possession and subsequent dispossession. Such a suit is wholly covered by section 6 of the Specific Relief Act and, therefore, the City Civil Court will have the jurisdiction to entertain and try such a suit. In support of his contention he has relied upon the decisions of this Court in (Shivax C. Cambatta v. Sunderdas Ebji)1, 52 Bom.L.R. 381; (Madhav Prasad Nigam v. Indirabai Chandravarkar)2, 55 Bom.L.R. 21; (Dattatraya Krishna Jangam v. Jairam Ganesh Gore)3, 64 Bom.L.R. 645 and (Pandhari v. Mirabai)4, 1980 Mh.L.J. 39.

4. On the other hand it is contended by Shri Suresh, learned Counsel appearing for the defendants that the present suit is wholly covered by section 41 of the said Act, and, therefore, the City Civil Court was right in returning the plaint for its presentation to the proper Court. Shri Suresh has also placed reliance upon an unreported decision of this Court in Notice of Motion No. 1310 of 1980 in S.C. Suit No. 1460 of 1980 (Chimanlal Dutta v. Jharna Ghosh and others)5, decided by Mehta, J., on 5/6th February, 1981. Though it was initially contended by Shri Suresh that the present suit is not covered by the section 6 of the Specific Relief Act, he has also now contented that even if it assumed that the said suit is under section 6 of the Specific Relief Act then also in view of the decision of Mehta, J., the Small Cause Court alone will have the jurisdiction to entertain such a suit and hence it was rightly held by the City Civil Court that it had no jurisdiction.

5. It is no doubt true that Mehta, J., in Notice of Motion No. 1310 of 1980 in S.C. Suit No. 1460 of 1980 has held that even a suit under section 6 of the Specific Relief Act is covered by section 41 of the said Act. However in my opinion the said view requires reconsideration for more than one reason. It is by now well settled that the question of title is wholly irrelevant in a suit under section 6 of the Specific Relief Act. The area covered by section 6 of the Specific Relief Act is very limited. Under the said provision if any person is dispossessed without his consent of immovable property, oth

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