Maintainability of the suit filed by plaintiff without surrendering possession.

The dispute in this case relates to a strip of land about 7 links width north to south and 136 links east to west which the plaintiff claims to have purchased from the sons of one Dharmalingam Pillai under Exhibit A-l dated 15th January, 1955. The defendant claims title to the suit property under an oral sale decades ago by Dharmalingam Pillai to his deceased agnatic cousin Venugopala Pillai and the allotment of the site to him in partition. Immediately south of the disputed site, the defendant claimed another extent of about 16 links in width and this site abutted the public street. It has now been found finally in S.A. No. 650 of 1962 that this vacant site abutting the street belongs to the Government, and is poromboke. It may be stated that the defendant claimed title to the suit site as well as to the site immediately south under the same title and by adverse possession. The suit out of which the Second Appeal arises was preceded by the suit, O.S. No. 391 of 1955 on the file of the District Munsif, Chidambaram, by the defendant under section 9 of the Specific Relief Act alleging trespass by the plaintiff subsequent to proceedings for eviction taken by the Government on the poromboke site. The defendant lost that suit in the first Court and succeeded in revision in this Court in C.R.P. No. 247 of 1957. The plaintiff thereupon instituted the present suit for declaration of his title to the suit property and for an injunction against the defendant executing the decree he had obtained in the suit filed under section 9 of the Specific Relief Act. In the alternative there was a claim for possession. There were various defences to the suit on the merits and on the maintainability of the suit. The Courts below have, on ample and relevant evidence, found that the plaintiff had title to the strip of land in question. They have also found plaintiff’s possession of the land within 12 years prior to the suit. The case of the defendant of oral purchase of the property by his brother was found against. These findings against the plaintiffs right to the suit property on the basis of title and adverse possession are findings of fact in this case and not open to reconsideration in Second Appeal.

But learned Counsel for the appellant attacks the decree of the Court below contending that the present suit is not maintainable, as the plaintiff had not surrendered possession of the property pursuant to the decree in the suit instituted by the defendant under section 9 of the Specific Relief Act made on revision in this Court, before instituting his suit on the basis of title. In support of this position, learned Counsel relied upon a decision of the Allahabad High Court in Parma Nand v. Sm. Chimmawati1. It is seen from the facts of that case that there was a decree for possession in a prior suit under section 9 of the Specific Relief Act and before surrendering possession a suit was filed for an injunction restraining the decree-holder in the suit tinder section 9 from executing his decree for possession. While confirming the dismissal of the suit by the Courts below, the learned Judge Brij Mohan Lall, J., observed:

“ In my opinion also such a suit does not lie. The appellants must first surrender possession and thereafter they can set up any right they like on the basis of title. If they are granted an injunction restraining the respondent from executing her decree the very object and purpose of the suit under section 9, Specific Relief Act, will be defeated.”

The vice of the latter suit in that case appears to be that it claimed only an injunction restraining the execution of the decree, and from the facts as set out in the report it appears that it was the only relief claimed in the latter suit. Section 9 of the Specific Relief Act by itself imposes no specific bar to a suit by the defeated party in possession before surrendering possession. Section 9 of the old Act ran thus:

“ If a person is dispossessed without his consent of immova