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Raghuvar Dayal Vs. Hargovind and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. No. 121 of 1954
Judge
Reported inAIR1958Raj287
ActsSpecific Relief Act, 1877 - Sections 9; Code of Civil Procedure (CPC) , 1908 - Sections 115
AppellantRaghuvar Dayal
RespondentHargovind and anr.
Appellant Advocate J.P. Jain, Adv.
Respondent Advocate R.K. Rastogi, Adv.
DispositionApplication dismissed
Cases ReferredBindubashni Chaudhuri v. Smt. Jahnavi Chaudhurani
Excerpt:
.....the present: clearly therefore there wasno question of dispossession and restoration of possession. it appears from that case that there was a good deal of divergence of opinion in madras high court upon this point. the plaintiff impleaded his tenants as well as his landlords who were defendants nos. are fully satisfied and specially in a case where there is an alternative remedy by way of a regular suit, this court would not be inclined to interfere in revision except in very special circumstances......13 cal wn 303 (q). in that case the plaintiff was a landlord and he had let out 800 bighas of land to tenants.those tenants were driven away by the defendants who took possession of the land. the dispossessed tenants were not parties to the suit. it was argued that section 9 of the act only applied to cases in which there was an actual bodily possession of which the plainitff was deprived and it was asserted that the only persons who could have maintained a suit under the section to recover possession of the land were the tenants who had been dispossessed. it was held that it was incorrect to say that the dispossession of the tenant, who is in actual occupation of the land cannot in any case be the dispossession of the landlord under whom he holds the land and to whom he is paying.....
Judgment:
ORDER

K.K. Sharma, J.

1. This is an application for revision by the defendant Raghuvar Dayal against the judgment and decree of the learned Civil Judge, Alwar in a suit under section 9 of the Specific Relief Act (hereinafter to be referred to as the Act).

2. The plaintiff came to court with the allegations that he had been in possession of a certain shop in Malakhera bazar, Alwar and that it had been let out on his behalf to Shivchand who was the defendant No. 2 in the case. Shivchand in collusion with the defendant Raghuvardayal executed a rent note in the latter's favour on 30-3-1950. On the basis of this rent note a suit was brought by Raghuvardayal against Shivchand for ejectment and it was decreed on 27-11-1950. In execution of this decree for ejectment Raghuvardayal got possession of the shop in dispute from Shivchand. The plaintiff came to know about this when possession had been taken on 3-8-1951 by Raghubardayal. The plaintiff stated in his plaint that by the action of the defendant, he was dispossessed without his consent otherwise than in due course of law. He therefore prayed for possession of the property in dispute.

3. The defendant alleged in his written statement that the shop in dispute was the joint property of Hargovind plaintiff as well as Raghuvardayal defendant and that the plaintiff's father Ramkanwar was managing the shop on behalf of both the owners. It was alleged that although the rent note had been executed by Shivchand in favour of Ramkanwar andhis son Hargovind, the plaintiff, on 4-10-1948, but later on by the consent of the plaintiff's father Ramkanwar a rent note dated 30-3-1950 was executed by Shivchand in favour of Raghuvardayal and he was put in possession of the property in dispute. Allegations of collusion were denied and it was pleaded that the suit could not be brought Under Section 9 of the Act under the circumstances of the case.

4. The suit was originally instituted in the court of the Munsif, Alwar on 14-8-1951, but later on it was found that the valuation was more than the pecuniary jurisdiction of the Munsif. The plaintiff, therefore, got the plaint back from the court of the Munsif. Alwar on 30-10-1953 and filed it in the Court of the Civil Judge, Alwar. One of the objections taken by the defendant was that the suit was time barred in the circumstances of the case.

5. The following three issues were framed in the suit:

(1) Is the suit within limitation?

(2) Is the present suit maintainable despite the fact that the defendant got possession through court in execution of a decree?

'(3) Was the plaintiff in possession of the Property in dispute legally and he has been dispossessed, so he is entitled to get the possession back?

6. Issue No. 2 was decided in favour of the plaintiff by the judgment of the learned Civil Judge dated 9-3-1954. Later on issues Nos. 1 and 3 were also decided in favour of the plaintiff by the judgment dated 30-8-1954. It is against these judgments and the decree in pursuance of them that the defendant Raghuvardayal has come in revision to this Court.

7. I have heard Sri J. P. Jain on behalf of the applicant and Shri R. K. Rastogi on behalf of the plaintiff opposite-party. It has been argued by Sri Jain that section 9 of the Act applies only when a person is dispossessed without his consent of immovable property otherwise than in due course of law. It was argued that in this case the plaintiff was not in actual possession of the property in dispute at the time of the alleged dispossession and therefore he could not bring the suit Under Section 9 of the Act. It was argued that whatever right the plaintiff possessed was that of realising the rent from Shrivchand and he could not under the circumstances take actual possession of the property in dispute from the defendant. Reliance was placed on certain rulings of various High Courts which I shall cite presently.

8. On behalf of the opposite party it was argued by Sri Rastogi that in the first instance no revision lav against the decree of the lower court when a remedy by way of regular suit is provided and the defendant Raghuvardayai ought to have taken recourse according to it. Further it was argued that Section 9 of the Act does not speak of actual possession. The words used are 'dispossessed' and 'recover possession thereof' and therefore it is wrong to argue that a suit Under Section 9 of the Act lies only if the plaintiff is in actual possession of the property and Is dispossessed therefrom. Learned counsel relied upon certain rulings of the Privy Council and Supreme Court to show that in a case like the present revision application does not lie. He also cited certain rulings of the Patna, Pepsu and Nagpur High Courts and also relied upon certain observations of the Rombay High Court in the rulings referred to by the learned counsel for the applicant.

9. Rulings relied upon by Sri Jain on behalfof the applicant are as under: Sitaram v. Ram Lal, ILR 18 All 440 (FB) (A); Sona Mia v. Prokash Chandra, AIR 1940 Cal 464 (B); Ratanlal Ghelabhai v. Amarsingh Rupsingh, AIR 1929 Bom 467 (C); Ramchandra v. Sambashiv, AIR 1928 Nag 313 (D); Veeraswami Mudali v. P. R. Venkatachala Mudali, AIR 1926 Mad 18 (E); Joychandlal Babu v. Kama-laksha Chaudhury, AIR 1949 PC 239 (F).

10. Rulings relied upon by the learned counsel for the opposite party are as follows: Gobindram v. Mst. Mewa, AIR 1953 Pepsu 188 (G); Sailesh Kumar v. Ramadevi, AIR 1952 Pat 339 (H); Bhojraj Kri-shuarao v. Sheshrao Diwakarrao, AIR 1949 Nag 126 (I); AIR 1929 Bom 467 (C).

11. Learned counsel for the opposite party cit-ed the following rulings in support of his conten-tion that application for revision does not lie in a case like the present: Jwala v. Ganga Prasad, ILR 30 All 331 (J-K); Sheo Ratanlal v. Choteylal, ILR 3 All 647 (FB)(L); Badri Dasv. Dhanni, AIR 1934 All 541 (M); U Kyan Lu v. U Shwe So, AIR 1929 Rang 21 (N); Venkatagiri Ayyangar v. Hindu Religi-ous Endowments Board, Madras, AIR 1949 PC 156 (O); Keshardeo v. Radha Kishen, AIR 1953 SC 23(P).

12. I have gone through the rulings cited by the learned counsel. In AIR 1940 Cal 464(B) referred to above, it was held that the only relief that can be granted Under Section 9 of the Act is the restoration of physical possession. As the plaintiffs had not lost that possession there could be no question of restoration. It would be clear from the report of that case that the plaintiffs' case was that they were in physical possession of the land in dispute even on the date of the suit. Clearly therefore there wasno question of dispossession and restoration of Possession. One of the prayers of the plaintiffs was that certain structures put up by the defendants at the inducement of the stall keepers be removed. It would thus appear that Section 9 of the Act did not apply to the facts of that case.

Any observations which go outside the limits of the suit in that case, can therefore be said to be mere obiter dicta. This ruling of Calcutta High Court is of a learned Single Judge. Against the observations in this ruling that suit Under Section 9 of the Act can be brought only by one who is in actual possession of the property in dispute, there is a ruling of a Division Bench of Calcutta High Court in the case of Bindubashni Chaudhuri v. Smt. Jahnavi Chaudhurani, 13 Cal WN 303 (Q). In that case the plaintiff was a landlord and he had let out 800 bighas of land to tenants.

Those tenants were driven away by the defendants who took possession of the land. The dispossessed tenants were not parties to the suit. It was argued that section 9 of the Act only applied to cases in which there was an actual bodily possession of which the plainitff was deprived and it was asserted that the only persons who could have maintained a suit under the section to recover possession of the land were the tenants who had been dispossessed. It was held that it was incorrect to say that the dispossession of the tenant, who is in actual occupation of the land cannot in any case be the dispossession of the landlord under whom he holds the land and to whom he is paying the rent for it. Itwas held that there are cases in which complete ouster of the tenant in actual occupation of the land is the ouster of his immediate landlord to whom the rent is paid. The decree regarding possession of the plaintiff Under Section 9 of the Act was consequently maintained.

13. In the case of AIR 1928 Nag 313 (D) referred to above, it was observed that where a tenant is dispossessed of certain land by a person other than his landlord, the landlord cannot sue Under Section 9 of the Act for its actual possession. In that case the tenant of the plaintiff was dispossessed by the defendant and the tenancy had neither been terminated nor surrendered. The plaintiff, who was a landlord, brought a suit for possession against Sambashiv defendant who had dispossessed Uttamchand Mar-wan, the tenant of the plaintiff. Certain decisions of different High Courts were considered and the following observation was made:

'The matter does not, however, appear to me open to any argument, as a statement of it in the words of the section itself, with only such explanatory interpolations as are open to no question, must necessarily be the correct view'.

This observation was made by Hallifax, A. J. C. who referred the case to a Division Bench, The Division Bench consisted of Hallifax A. J. C. himself and Kotval, A. J. C. They said that there was nothing to add to what had been said in the order of reference with which they agreed except on one minor matter. This minor matter was that it was suggested in one of the paras of the order of reference that the fact of the tenancy having been surrendered would not give the landlord the right to sue under section 9 of the Act because the landlord could not be said to have been dispossessed. He was merely excluded from possession on the termination of the tenant's interest. It was observed that under those circumstances the landlord would be a person claiming possession of the land through the person who was actually dispossessed. In that case there was nothing to show that the tenant had no mind to cling to his possession as a tenant -- rather the fact that he applied that he might be made a co-plaintiff went to show that he still claimed possession of the property as a tenant unlike the present case where Shiv-chand tenant from his conduct has shown that he has no mind to continue in possession of the property in suit.

14. In the case of AIR 1926 Mad 18 (E) cited above, it was held that when a land has been allotted to a tenant, the landlord cannot maintain a suit Under Section 9 of the Act against a trespasser for immediate possession. It appears from that case that there was a good deal of divergence of opinion in Madras High Court upon this point. Moreover in that case there is nothing to show that the tenant had altogether cut off his connections with the land in dispute. In the present case, as has been said above, the conduct of the tenant shows that he has no mind to have any connection with the land in suit. He has suffered a decree for ejectment to be passed against him at the instance of Raghuvardayal, defendant, and consequently he could not bring a suit for the possession of the property. The tenant being no longer entitled to take back possession from Raghuvardayal defendant, it is only the plaintiff whose possession is interfered with now by Raghuvar Dayal.

15. The Full Bench ruling of Allahabad High Court in ILR 18 All 440 (FB) (A) referred to above hag no bearing on Section 9 of the Act. In that case certain landlords had let out the land to the plaintiff who had in turn sub-let the land to the defendants Nos. 3 and 4 of that case. The defendants Nos. 3 and 4 did not pay arrears of rent and so the plaintiff distrained the crops standing on the field. The defendants Nos. 1 & 2, who were the landlords of the plaintiff filed an objection claiming the crops as their own and denying the plaintiffs title.

The Revenue Court released the crops in favour of the defendants Nos. 1 and 2. The plaintiff then brought a suit claiming actual possession over the land in question after ejectment of the defendants. The defendants plaaded inter alia that the suit was not cognizable by a civil court. The court of first instance accepted this contention and dismissed the suit. On appeal by the plaintiff the first appellate court reversed the decree of the first court and remanded the case to it for disposal on merits. Against the said order of remand, the defendants appealed to the High Court. The main question which came up for consideration was whether civil courts had jurisdiction in the case.

The plaintiff impleaded his tenants as well as his landlords who were defendants Nos. 1 and 2 and on the allegation that defendants Nos. 1 and 2 were in collusion with the defendants Nos. 3 and 4, he prayed for dispossession of all the defendants. The suit was in substance a suit for dispossession of a tenant by a landlord and it was in that context that it was observed that the plaintiff could not bring a suit for actual possession. This ruling was considered by Patna High Court in AIR 1952 Pat 339 (H) cited above. That was a case Under Section 9 of the Act.

The suit was brought by the plaintiff for possession of a house after evicting the defendants therefrom. The plaintiff's case was that the house had been allotted to her in a partition decree and that she had let out a smaller portion of it to one person and the major portion to another. The tenant of the major portion vacated the house and then that portion was let out to the defendants Nos, 5 and 6 of that suit.

It was held that one of the defendants, who was the father of other two defendants, interfered with the possession of the defendants Nos. 5 and 6, and during the temporary absence of defendants Nos. 5 and 6, the principal defendant unlawfully dispossessed defendants Nos. 5 and 6 from the portion of the house which had been let out to them. It was argued on behalf, of the defendants that the plaintiff's suit Under Section 9 of the Act was not maintainable as she could not sue for possession, the actual possession having been with defendants Nos. 5 and 6 who were the tenants of the house.

Reliance was placed upon the ruling of the Full Bench of Allahabad High Court cited above and also on the ruling of Madras High Court which has also been referred to above. It was held that it was sufficient to state that the case of Allahabad High Court was not one Under Section 9 of the Act and it was decided besides the points in issue in the case. The ruling of Bombay High Court, which had taken a contrary view to that of Madras High Court, found acceptance. It was observed that there was nothing to bar a landlord from suing a trespasser Under Section 9 of the Act for possession even when at the date of dispos-session the property was under the occupation of the tenant entitled to its exclusive use. In a ruling of the Pepsu High Court in AIR 1953 Pepsu 188 (G) cited above the plaintiff was a landlord.

The land was in the tenancy of another person on behalf of the plaintiff. This tenant of the landlord was dispossessed by the defendant. The suit was dismissed by the first court on the ground thatthe plaintiff was not actually dispossessed from the land in dispute, but it was the tenant who was dispossessed from it and consequently Section 9 of the Act had no application. On revision by the plaintiff it was held that the plaintiff was entitled to bring a suit for possession Under Section 9 of the Act. In that case also the Full Bench cass of Allahabad High Court and the ruling of Madras High Court relied on by the learned counsel for the applicant were considered.

16. In AIR 1929 Bom 467 (C) referred to above, it was held by a Division Bench that

'in the case of a landlord and a tenant, the landlord is in possession through his tenant and .....the proper remedy where exclusive occupation of immovable property is given to a tenant is for the tenant to file a suit for possession, but the landlord, if he desires to sue immediately on the possessory right, can sue in the name of the tenant and further, for an injury to the reversion, the landlord can sue in his own name.....The plaintiff as landlord isentitled to recover rent from his tenant and this right is one which comes under the definition of, 'immov-able property' in section 3 clause 25 of the General Clauses Act'.

It was further observed :

'if the landlord were unable to file a suit Under Section 9 of the Act, and the tenant were, as has been pointed out in one of the cases, disinclined to take any action under Section 9 the landlord to obtain redress would then be in the difficult position of having to file a regular suit for a declaration of his title against the person in Possession of the land and, possession being evidence of title the 'onus' would be on the plaintiff; whereas if the suit can be filed under Section 9 it will lie on defendant 1 to establish by a regular suit his title to the land. But even if the plaintiff cannot sue alone we have the fact that he has joined his tenant as defendant 2 in the suit and all the parties who are interected in the land are, therefore, before the Court and the Court can pronounce a decree which will bind them all.'

17. On a perusal of the wordings of Section 9 of the Act it would be found that any person, who is dispossessed without his consent of immovable property otherwise than in due course of law or any person claiming through him may by suit recover possession thereof.

18. On a careful consideration of the wordings of Section 9 of the Act, I am of opinion that the ruling in which it has been held that the suit for possession Under Section 9 of the Act can be brought by a landlord also even when the property is in possession of the tenant have taken a correct view of the provisions of Section 9. The words used are 'dispossessed'' and 'recover possession thereof'. Section 9 is not confined only to those cases where the plaintiff is in actual possession of the property in suit. Whatever possession the plaintiff has at the date of dispossession, he is entitled to claim in case of dispossession. If a tenant is in possession of the property and being dispossessed therefrom does not care to bring a suit for possessionof the property, the landlord cannot be shut off from bringing a suit against the trespasser.

If the tenant has a mind to remain in possession of the property on behalf of the landlord, the landlord will put him in actual possession of the property. If, however, the tenant has no mind to stick to the land, the landlord is entitled to get actual possession of the property from the trespasser. Of course it would be proper to make the tenant also a Party to the suit. He may either join as a co-plaintiff or in case he refuses to join as a co-plaintiff he may be made a defendant so that he might have his say in the matter. In this case the tenant has also been made a defendant.

I may say here that in this particular case according to the finding of the learned Civil Judge with which I have no reason to disagree, the tenant had put Raghuvar Dayal defendant in possession of the property in collusion with him. This Raghuvar-dayal filed a suit for ejectment and the tenant entered into a compromise and suffered a compromise decree for ejectment being passed against him. In execution of that decree Shivchand tenant was dispossessed. Under these circumtances to my mind the plaintiff was entitled to actual possession of the property in dispute and the defendant Raghuvar-dayal who came into possession of that property certainly interfered with the possession of the plaintiff.

Shivchand tenant had no interest in the possession of the property in dispute under the circumstances of the case and the only persons interested in possession thereof was the plaintiff. I cannot therefore find any fault with the decree of the lower Court awarding possession to the plaintiff.

19. Section 115 C.P.C. provides revisional jurisdiction to the High Court and it is to be exercised only when the provisions of Section 115 C. P. C. are fully satisfied and specially in a case where there is an alternative remedy by way of a regular suit, this Court would not be inclined to interfere in revision except in very special circumstances. To my mind there are no special circumstances in this case to induce me to interfere in revision.

20. The application for revision is dismissed.

The applicant shall pay the costs to the oppositeparty.


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