Back
1952 Supreme(Pat) 29
PATNA HIGH COURT
B.P.Jamuar and Rai JJ.
Sailesh Kumar
Versus
Rama Devi
Civil Revision No. 570 of 1950 ;
Decided On : FEBRUARY 12, 1952
A landlord can maintain a suit under Section 9 of the Specific Relief Act against a trespasser for immediate possession even when, at the date of dispossession, the house was in occupation of a tenant entitled to its exclusive use.
Headnote:
SPECIFIC RELIEF ACT, 1877 - SECTION 9 - LANDLORD'S SUIT FOR POSSESSION - MAINTAINABILITY - TENANT IN POSSESSION - TRESPASSER DISPOSSESSING TENANT - LANDLORD'S RIGHT TO SUE UNDER SECTION 9.
Fact of the Case:
Plaintiff, the landlord, filed a suit under Section 9 of the Specific Relief Act against defendants, trespassers, for immediate possession of a house. The house was in occupation of tenants entitled to its exclusive use at the time of dispossession.
Finding of the Court:
The court held that the landlord could maintain a suit under Section 9 of the Specific Relief Act against a trespasser for immediate possession even when, at the date of dispossession, the house was in occupation of a tenant entitled to its exclusive use.
Issues: Whether a landlord can maintain a suit under Section 9 of the Specific Relief Act against a trespasser for immediate possession when, at the date of dispossession, the house was in occupation of a tenant entitled to its exclusive use.
Ratio Decidendi: The court relied on the plain language of Section 9 of the Specific Relief Act, which provides that any person dispossessed without consent of immovable property otherwise than in due course of law may sue for recovery of possession. The court also noted that the tenants had terminated their lease, leaving the landlord entitled to bring a suit for possession.
Final Decision: The court dismissed the application in revision, upholding the trial court's decree for possession in favor of the plaintiff.
Jamuar, J.
1. This case has been referred to a Division Bench for the consideration of the question whether a landlord, can maintain a suit under Section 9 of the Specific Relief Act against, a trespasser for immediate possession when, at the date of dispossession, the house was in occupation of a tenant entitled to its exclusive use.
2. The application is directed against a judgment and order dated the 30th June, 1950, passed by the learned Subordinate Judge of Arrah in Title Suit No. 109 of 1949.
3. The suit was brought by the plaintiff opposite party for a decree for possession of a house bearing Municipal Holding No. 6 in Circle No. 2 of the Arrah Municipality after evicting defendants 1 to 4 therefrom. The suit was under the provisions of Section 9 of the Specific Relief Act.
4. The plaintiffs case was that the house had been allotted to her under a partition decree dated the 26th February, 1947, and actual delivery of possession was obtained by her on the 27th November, 1948. Thereafter, she let out a smaller portion of the house to one Raghubir Ram, & the major portion to one Kashi Ram on the 1st December 1946. Kashi Ram vacated the house on the 29th February, 1949, and, on the 1st March, 1949, that portion was let out to defendants 5 and 6. It was then alleged that defendant No. 4, father of defendants 2 and 3, interfered with the possession of defendants 5 and 6, and a proceeding under Sec.144 of the Code of Criminal Procedure was started, resulting in an order against defendant No. 4. The further case of the plaintiff was that, during the temporary absence of defendants 5 and 6, defendants 1 to 4, in collusion, unlawfully dispossessed defendants 5 and 6 from the portion of the house which had been let out to them. This dispossession was on the 15th May, 1949. Thereafter, the suit under Section 9 of the Specific Relief Act was instituted by the plaintiff. The suit was decreed; hence this application in revision.
5. It has been found by the Court below that the plaintiff is the proprietress of the house in question, that she had let out the major portion of it to defendants 5 and 6, and that defendants 5 and 6 were unlawfully dispossessed from their possession on the 15th May, 1949 by defendants 1 to 4.
6. Mr. P.B. Ganguly, appearing in support of this application, contended that the plaintiffs suit under Section 9 of the Specific Relief Act was not maintainable, as she could not sue for possession, the actual possession having been with defendants 5 and 6 who were the tenants of the house. In support of his contention, he placed reliance on the cases of SITA RAM V/s. RAM LAL, 18 All 440 and VEERASWAMI V. VENKATACHALA, AIR 1926 Mad 18. It is sufficient to state that the Allahabad case was not one under Section 9 of the Specific Relief Act, and it is beside the point in issue before us. The Madras case, however, supports the contention. That case is a single Judge case, and it appears that in the Madras High Court there are conflicting decisions on this point.
7. Section 9 of the Specific Relief Act is as follows:
"If any person is dispossessed without his consent of immoveable 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."
8. The contrary view was taken in the cases of JADU NATH SINGH V/s. BISHUNATH SINGH, 1950 All LJ 288 & RATANLAL GHELABHAI V/s. AMARSINGH RUPSANG, 53 Bom 773. I respectfully agree with the view expressed in these cases. I am of opinion that there is nothing to bar a landlord from suing a trespasser under Section 9, Specific Relief Act, for possession even when at the date of dispossession the propery is in occupation of a tenant entitled to possession.
9. There is furthermore another difficulty in the way of the petitioners. In the written statement filed on behalf of defendants Nos. 5 and 6, it was stated as follows:
"8. That it is also true that on
