Dispossession without consent and not in due course of law entitles a person to recover possession under Section 9 of the Specific Relief Act.

ORDER : This writ application under Article 226 of the Constitution has been filed by Jeewanmal, Parmanahd and Bhagwandas against Dr. Dharamchand and nine others praying that the judgment of the Senior Civil Judge, Ganganagar dated 1st June, 1963, dismissing the suit of the petitioners filed under Section 9 of the Specific Relief Act may be quashed.

2. The facts giving rise to this litigation are as follows :

Petitioners are the refugees who were allotted three pieces of land known as Ahatas Nos. 67, 71 and 72 situate in Mandi Pilibanga in the District of Ganganagar. This allotment order was made on 5th of May, 1961, and the Settlement-cum-Managing Officer, Ganganagar issued Sanads to the petitioners to evidence the transfer of the lands to them. It is said that on 3rd of December, 1961, the possession of these three plots of land was handed over to the petitioners by the revenue Patwari in compliance with the orders of the Settlement-cum-Managing Officer, Ganganagar.

The petitioners' case is that after taking possession of these plots, they did not start construction on them and when they went to Jodhpur to attend some marriage ceremony and were out of Pilibanga, the said lands were auctioned by the Secretary, Mandi Development Board, Hanumangarh, on 16th of April, 1962, and the possession of these plots was handed over to the auction-purchasers-respondents on 13th of July, 1962. When the petitioners returned from Jodhpur to Mandi Pilibanga, they came to know that their plots were sold in auction by the Secretary, Mandi Development Board, Hanumangarh, without any authority of law, and therefore they made a representation to the said officer (the copy of that representation has not been placed on the record). The petitioners did not receive any reply from the said Secretary and, therefore, on 9th of September, 1962, the petitioners instituted a suit under Section 9 of the Specific Relief Act for the restoration of the possession of the said lands in the Court of Senior Civil Judge, Ganaganagar.

The learned Judge framed issues and after recording evidence of both the parties, decided that the petitioners were in possession of the disputed lands when they were put to auction by the Secretary, Mandi Development Board, Hanumangarh and he also recorded a finding that the petitioners were dispossessed from their lands without their consent, but he came to the conclusion that since the plots in dispute were auctioned by the Secretary, Mandi Development Board, Hanumangarh, who was competent to do so, and it was in pursuance of the orders issued by the said Secretary that the Overseer of the Board handed over the possession of the disputed plots to the auction purchasers, therefore, it could not be said that the petitioners were not dispossessed of their properties in due course of law, and in this view of the matter, the suit of the petitioners was dismissed.

The petitioners thereafter preferred a revision application in this Court which was decided by learned single Judge on 15th December, 1964. The learned Judge, who disposed of that revision application, was of the view that he could not interfere with the judgment of the trial Court in the exercise of revision jurisdiction but he was definitely of opinion that -

"grave injustice had been done to the applicants inasmuch as they had been deprived of their property without the authority of law under an ultra vires order of the Secretary, Mandi Development Board, Hanumangarh. The applicants should have more appropriately sought redress in such a case by filing a writ petition under Article 226 of the Constitution as their fundamental rights were invaded."

In view of this observation of the learned Judge, the petitioners have filed this writ application under Article 226 of the Constitution mainly on the ground that the learned Senior Civil Judge while dismissing the petitioners' suit did not correctly appreciate the scope of Section 9 of the Specific Relief Act and has erroneously h