1. The sole question raised in this appeal is whether a plaintiff who sues for possession and for ejectment of the defendant on the basis of title and fails to prove his title is still entitled to a decree for possession under Section 9 of the Specific Relief Act, 1877, if he can prove possession within six months anterior to the date of his dispossession. As there are conflicting rulings in this Court on the point, the case has been referred to this Bench.
2. The facts are these. The plaintiff alleged that he was the owner of a grove which he and his ancestors held rent free, that the defendants Nos. 3 to 11 were his co-sharers, that the first two defendants, who are the landholders of the village, wrongfully dispossessed him in July 1906 and let it to the 13th defendant and that he, plaintiff, as one of the owners of the grove, was entitled to be restored to possession. He accordingly brought the suit out of which this appeal has arisen, on the 7th of January 1907 for ejectment of the defendants Nos. 1, 2 and 13 and for recovery of possession of the grove. The Court of first instance found that the plaintiff was the tenant of the defendants Nos. 1 and 2 in respect of the grove and not the owner of it and that lie had been dispossessed within six months preceding the date of the institution of the suit. It made a decree in the plaintiff's favour for possession as tenant. On appeal by the defendants the lower appellate Court held that the plaintiff had forfeited his right as tenant by denying his landlord's title, that the trees now existing 'in the grove were of spontaneous growth and were not planted by the plaintiff or his predecessors-in-title, and that he was not entitled to recover possession. The suit was accordingly dismissed. The findings of the lower appellate Court have not been questioned in the argument before us but it is contended that as the Court of first instance found that the plaintiff's suit had been instituted within six months of the date of his dispossession and this finding was not dissented from by the lower appellate Court, the plaintiff was entitled to a decree under Section 9 of the Specific Relief Act, although he failed to establish his title. In support of this contention, we have been referred to the decision of this Court in Ram Harakh Rai v. Sheodihal Joti 15 A. 384, which undoubtedly favours the contention. In that case it was held that 'the fact that the plaintiff, in addition to alleging and proving the facts which would entitle him to a decree under the first paragraph of Section 9 claimed a title as mortgagee, would not disentitle him to a decree under the first paragraph of Section 9', The learned Judges further observed:--'We see no reason why a claim for damages and a claim for establishment of title may not be combined with a claim based on the first paragraph of Section 9 of Act No. I of 1877.' With great respect, we are unable to agree with this view. Section 5 of the Act provides that a person entitled to the possession of specific immovable property may recover it in the manner prescribed by the Code of Civil Procedure, that is to say, by a suit for ejectment on the basis of title; Section 9 gives a summary remedy to a person, who has without his consent been dispossessed of immovable property otherwise than in due course of law for recovery of possession without establishing title provided that his suit is brought within six months of the date of dispossession. The second paragraph of the section provides that the person against whom a decree may he passed under the first paragraph may, notwithstanding such decree, sue to establish his title and to recover possession. The two sections give alternative remedies and are, in our opinion, mutually exclusive. If a suit is brought under Section 9 for recovery of possession, no question of title can be raised or determined. The object of the section is clearly to discourage forcible dispossession and to enable the person dispossessed to recover possession by merely proving previous possession and wrongful dispossession without proving title but that is not his only remedy. He may, if he so chooses, bring a suit for possession on the basis of his title. But we do not think that he can combine both remedies in the same suit and that he can get a decree for possession even if he fails to prove title. Such a combination would, to say the least of it, result in anomaly and inconvenience. In a suit under Section 9 no question of title is to be determined but that question may be tried in another suit instituted after the decree in that suit. If a claim for establishment of title can be combined with a claim under Section 9, the Court will have to grant a decree for possession on dispossession being proved in spite of its finding that the plaintiff had no title and that title was in the defendant. It could not surely be the intention of the legislature that the question of title could be litigated in another suit which, under the second paragraph of Section 9, the defendant would have the right to bring. In the case relied on, the claim for establishment of the plaintiff's title and for damages was dismissed but he was granted a decree for possession. The defendant was entitled under Section 9 to bring a suit for establishment of his title and in such suit the decision in the former suit as to title would be conclusive between the parties so that the defendant in the first suit had merely to file his plaint in order to entitle him to a decree. This would only lead to anomaly and would promote litigation. In our judgment, when a plaintiff sues for possession on the basis of title and fails to establish title, he cannot be granted a decree for possession under the first paragraph of Section 9 of the Specific Relief Act. Of course, in some instances previous possession may afford evidence of title and where the defendant is a trespasser and the plaintiff was in continuous and peaceful possession, he would be entitled to retain such possession. But whereas in this case, it is found that the plaintiff has no title and that the principal defendants are entitled to the property, the plaintiff cannot obtain a decree for possession. Oar view is supported by the ruling of the Madras, High Court in Ramasami Chetti v. Parman Chetti 25 M. 448 : 11 M.L.J. 403 and is in consonance with the decisions of this Court in Wojid Ali v. Ram Saran A.W.N. (1884) 39 and Chhatan Rai v. Sheo Ghulam Rai A.W.N. (1889) 89, which do not appear to have been considered in Ram Harakh Rai v. Sheodihal Joti 15 A. 384 referred to above. The case last mentioned, no doubt, followed by one of us sitting singly in Mousi v. Kashi A.W.N. (1899) 145 but this was done with reluctance. The point, however, did not arise in that case, as the plaintiff's adverse possession for more than twelve years was established. For the reasons stated above, we are of opinion that when a plaintiff brings a suit for possession on the basis of title and fails to establish title, he cannot be granted a decree under the first paragraph of Section 9 of the Specific Relief Act, and that the case of Ram Harakh Rai v. Sheodihal Joti 15 A. 384 was not rightly decided. This appeal fails and is dismissed with costs which in this Court will include fees on the higher scale