P L D 1965 Dacca 269 (PLP)

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.