Skip to content


Mari Doddatamma Markundi Vs. Santaya Ramkrishna Pai - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 640 of 1921
Judge
Reported in(1922)24BOMLR768
AppellantMari Doddatamma Markundi
RespondentSantaya Ramkrishna Pai
DispositionAppeal dismissed
Excerpt:
specific relief act (i of 1877), sections 56(b), 9-person in possession-order under section 9-suit by person in possession for maintaining his possession.;a person in possession, against whom an adverse order is passed under section 9 of the specific relief act 1877, can institute a suit a establish his title to the property and to obtain an injunction restraining his adversary from disturbing his possession not withstanding the provisions of section 56(b) of the act. - - 293 of 1917 was clearly one contemplated by section 9 of that act, the object of that section is to discourage people from taking the law into their own hands, however good their title may be. 537. an order or decree passed under that section is not open to appeal or to review at the instance of the defeated party;.....are as follows:-2. in or about march 1915 the respondent put the appellant in possession of the suit lands under a chalgeni agreement. in 1917 the respondent obtained a decree in the court of the mamlatdar at kumta in possessory suit no. 3 of 1917 and took possession which he has retained ever since. the appellant then brought suit no. 293 of 1917 in the court of the subordinate judge of kumta for restoration of possession, under section 9 of the specific relief act, 1877. he obtained a decree in his favour, but before he could execute it the respondent instituted the present suit to establish his title to the lands and to obtain an injunction as stated above.3. the lower courts agree in holding that the respondent has established his title to the said lands the decree passed by the.....
Judgment:

Coyajee, J.

1. The respondent being in possession of certain lands instituted the suit which has given rise to this appeal, to seek an injunction to restrain the appellant from dispossessing him by enforcing the decree passed in Suit No. 293 of 1917. He further asked to be restored to possession if during the pendency of this suit he is so dispossessed. The facts which have necessitated these proceedings are as follows:-

2. In or about March 1915 the respondent put the appellant in possession of the suit lands under a Chalgeni agreement. In 1917 the respondent obtained a decree in the Court of the Mamlatdar at Kumta in possessory Suit No. 3 of 1917 and took possession which he has retained ever since. The appellant then brought Suit No. 293 of 1917 in the Court of the Subordinate Judge of Kumta for restoration of possession, under Section 9 of the Specific Relief Act, 1877. He obtained a decree in his favour, but before he could execute it the respondent instituted the present suit to establish his title to the lands and to obtain an injunction as stated above.

3. The lower Courts agree in holding that the respondent has established his title to the said lands The decree passed by the trial Court, which has been affirmed by the District Court, is in these terms:

Plaintiff is entitled to continue to be in possession of the suit land. Defendant is permanently restrained from obstructing the plaintiff's possession of the land on the strength of the decree in Civil Suit No. 293 of 1917. The decree is inoperative and incapable of execution to that extent by virtue of this order.

4. It has been Urged in this second appeal that this decree offends against the provisions of Section 56, Clause (b), of the Specific Relief Act. Now the decree passed in Suit No. 293 of 1917 was clearly one contemplated by Section 9 of that Act, The object of that section is to discourage people from taking the law into their own hands, however good their title may be. (Krishnarav Yashvant v. Vasudev Apaji Ghotikar I.L.R. (1884) 8 Bom. 371. It provides 'a summary and speedy remedy through the medium of the Civil Court for the restoration of possession to a party dispossessed by another, leaving them to fight out the question of their respective titles if they are so advised ': Wali Ahmad Khan v. Ajudhia Kandu I.L.R. (1891) All. 537. An order or decree passed under that section is not open to appeal or to review at the instance of the defeated party; and the section expressly provides that nothing contained therein shall bar any person from suing to establish his title to such property and to recover possession thereof. It was therefore competent to the respondent to institute this suit to establish his title to the lands in dispute; and being in possession thereof, the only further relief which he could seek was an injunction to restrain the appellant from disturbing his possession. The terms of the decree passed by the lower Court are, in my opinion, unobjectionable.

5. In support of the appellant's contention, reliance was placed on the following observations in the judgment of Markby J. in Dhuronidhur Sen v. Agra Bank: I.L.R. (1878) Cal. 380.

But for one Judge to issue an injunction against a decree holder to restrain him from executing the decree of another Judge exercising co-ordinate jurisdiction, upon the ground that the proceedings by which the decree was obtained were altogether illegal, is, as far as I am aware, a proceeding entirely without precedent, and one which it seems to me very dangerous to introduce. It has already been found difficult enough to bring litigation in this country to a termination, and if we were to grant this injunction, I am very much afraid that advantage would be taken of the precedent to prolong litigation very much further.

6. The decree there under consideration was not one passed under the said Section 9. It is, therefore, not easy to see how the above pronouncement could apply to the facts of this case where the respondent is in effect seeking that remedy which is expressly allowed to him by that enactment. This case rather cornea within the following observations in the same judgment (p. 395): 'In some cases a suit to reverse the order, treating it as a summary order, may be brought.' The sole object and purpose of the present suit is to obtain a reversal of the order made in Suit No. 293 of 1917, treating it as of a summary nature.

7. For these reasons I affirm the decree of the lower Court and dismiss this appeal with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //