(1) This civil revision petition arises out of a decree passed by the learned subordinate Judge, Cuddalore, under S. 9 of the Specific Relief Act directing restoration of possession of the property that forms the subject matter of this litigation to the respondent. The property belongs to the Neyveli Lignite Corporation Ltd. and is situate within the mining area. It was leased out in the years 1955 to the respondent for a year, for running a canteen. the lease was renewed thereafter every year till 31-12-1961. The Corporation then appears to have decided that a canteen within the mining area should be run only by a co-operative society for the benefit of the employees of the Corporation, and it, therefore, declined to extend the lease in favour of the respondent any further.
(2) But the respondent was not prepared to reconcile himself with the termination of his agreement. He made efforts to have the lease for a further period of five years and failing in his efforts, he applied for extension of the period by one year at least. All his attempts in that direction failed completely and the Corporation by its letter dated 12-3-1962 definitely informed him that he could not get any further lease and called upon him to give vacant possession within a month from the date of the receipt of the notice. The notice calling upon the respondent to give possession purported to do so under clause 4 of the terms and conditions under which the lease was originally granted. The time granted by the notice expired by 14-4-1962. The respondent paid and the Corporation accepted rent for the property till 31-3-1962; but when the time came for delivery of possession, the respondent was not in a mood to vacate.
(3) On 16-4-1962 the Township Administrator and the Security Officer went to the respondent and demanded vacant possession of the property. There are different versions about the response of the tenant, the former saying that the latter promised to give up his possession within 2 hours time and the latter saying that he definitely refused to do so. Whatever that may be, the two officers of the Corporation accompanied by the Sub-Inspector of Police went to the premises by about 11 a.m. Possession was then demanded and the respondent declined to give it. According to the latter, the Sub Inspector of Police who was present then remarked "Let us see what he does. Take out the articles". The canteen was then serving it s customers. The photograph which resourcefully enough the respondent had taken at that time, shows this fact. The employees of the Corporation however shifted the furniture in the canteen to a portion of the premises and took an inventory of the articles found there and secured the same in one of the rooms of the canteen. The respondent who was standing by, did not do anything but his manager who was in charge of the canteen, signed the inventory.
(4) There was no protest then from the respondent for what had been done. Five days afterwards, that is, on 21-4-1962, he issued a notice through his advocate calling upon the corporation to pay damages to him to the tune of Rs. 16230, failing which he threatened to take steps for recovery of the same. The notice also mentioned the fact that the Corporation was in possession of the moveables belonging to the respondent, which was valued at Rs. 5075. Significantly enough there was no demand in his notice for restoration to possession.
(5) In the meanwhile the petitioner called upon the respondent to remove the moveables from the canteen building as the same was required for use by the Corporation.
(6) The respondent then instituted the suit out of which this civil revision petition arises under S. 9 of the Specific Relief Act. That was filed on 2-5-1962. But strangely enough on 25-5-1962, he removed from the premises all his articles stored up, thus giving up completely possession of the premises in which he was running the canteen. This act of the respondent is undoubtedly referable to the demand made by the Corporation on 21-4-1962 to remove his articles and thereby give complete possession to it.
(7) Unfortunately the significance of these two circumstances, namely, the respondent, not insisting upon restoration of possession in his notice dated 21-4-1962, and his complete response to the request of the Corporation to remove his moveables, have not been taken into account by the lower court while considering the maintainability of the suit. The court, however, on a consideration of the oral evidence in the case, came to the conclusion that there must have been some threat of force before taking possession of the premises by the Corporation and expressed its final conclusion thus:
"Considering the entire evidence, I am satisfied that the plaintiff was not a consenting party and though he was not physically and forcibly thrown out bodily and thus possession was taken, possession was taken under threat of force or at any rate the atmosphere was such to create a psychological reaction in the mind of the plaintiff that there would be force and that out of fear he yielded."
In so far as this conclusion rests on a finding of fact, this court must accept the same in proceedings coming before it under S. 115 C. P. C. But there is, however, considerable difficulty in appreciating what precisely the learned Subordinate Judge meant by the concluding portion of his finding. While one can accept it to the extent that the conduct of the officers of the Corporation in the manner they acted was highhanded., it is rather difficult to subscribe in the absence of other evidence, to the proposition that the respondent yielded up because of any threat of force. What psychological effect the statement of the Sub Inspector of Police--"Let us see what he does, Take out the articles"--had on the respondent is difficult to speculate. It must not be forgotten that on the date when the Corporation went to demand and take possession, the respondent had no right at all to remain on the land. He was himself aware of that position. Was it mere acceptance of the inevitable, that he having no subsisting right to remain on the property, did not very much care about the landlord taking possession in the way it did, or was it because of fear that the Sub Inspector of Police might do something unlawful? There is, however, no evidence that beyond the words attributed to him, the sub Inspector said or did anything to instil a fear in the respondent. Nor is there any evidence to show that the security officer and the General Administrator who were present then, threatened the respondent with anything.
One thing, however, is clear viz, that the respondent is a person who was not unconscious of his rights. It was only a few days before the events just now narrated happened, that he through his advocate at Coimbatore, wrote a letter to the Managing Director of the Corporation, that the Corporation had no right to make forcible entry into the canteen premises. If really the respondent felt aggrieved by the way in which possession was taken, one would have expected him to make a demand for restoration of possession when he sent a notice through his advocates on 21-4-1962 claiming as he did a large sum of money by way of damages. On the other hand, the notice while stating that the eviction of the respondent was illegal and amounted to a breach of contract of the lease, which he had till the end of the year, made only a claim for damages caused by way of loss of profits for the remaining 8 months of the year. The case of the respondent that he was granted a lease till the end of the year is not supported by any evidence in the case. Therefore, the conduct of the respondent in not demanding restoration of possession and his subsequent removal of his moveables from the canteen premises would appear to show that he was in a sense willing to leave the property and was content to sue the petitioner for damages for the way in which its officers entered into possession of the property.
(8) The main contention of the learned Advocate General who appeared for the Corporation is, that the statutory remedy available to a person dispossessed under S. 9 of the Specific Relief Act, is a relic of the old English law, which even in the country of its origin had been changed and that the provisions of the section should not be applied to modern conditions. Secondly, it was argued that on the terms of the section itself a lawful, albeit forcible entry by a landlord into the premises occupied by his tenant will not amount to dispossession within the meaning of that section. We are of opinion that neither of the two contentions is correct. We shall give our reasons now and examine how far these contentions are justified both in regard to its historical background to the Specific Relief Act as well as its application to modern conditions.
(9) Under the English law, possession obtained either peacefully or by force by the true owner is lawful possession. But by Statute 5 Richard II, no person can make an entry into any land and tenement except when it is lawful;
"and in such case he shall not with strong hand nor with multitude of people but only in peaceable and easy manner and if any man do to the contrary, and thereof be duly convict, he shall be punished by imprisonment of his body and thereof ransomed at the King's will."
The punishment thus imposed is in the region of criminal law. We cannot, therefore, accept the learned Advocate General's assumption that the origin of S. 9 of the Specific Relief Act was the above mentioned provision under the English law
(10) Section 9 of the Specific Relief Act provides a special summary and speedy remedy for a person in possession of immovable property. Whatever his title may be thereto, to recover such possession from another who had illegally and without his consent and will, ousted him therefrom. This has its origin in the proceeding called Interdict undivi of the Roman law, where a person wrongfully dispossessed by another could recover it back if he put forward his claim within a period of one year on the mere ground of his previous possession irrespective of the defects in his title. English lawyers followed up this idea, by inventing two writs of assize: (1) most d' ancestor where the true heir of a deceased was kept out of possession by another person who made entry into the estate and (2) Noyal disseision where a person in possession had been tuned out by another. It is the latter form of remedy to the dispossessed, that has been put in a statutory form in this country originally by S. 15 of the Limitation Act, 1859. That section has now been replaced by S. 9 of the Specific Relief Act.
(11) The two writs available under the old English law became gradually extinct by disuse and later they were abolished by 3 and 4 Will. IV Ch.
36. The law now in that country is that so long as the original owner makes his entry in a peaceable and easy manner, he cannot be treated as a trespasser and the person previously in possession without title, must vacate. This right of the true owner is, however, subject to the condition that the entry should really be peaceable for otherwise the owner will be exposed to the penalties referred to earlier under Statute 5 Richard II.
(12) But these features of the English law are not applicable to this country, where this summary remedy in case of ouster of a person in possession exists by virtue of a statute. This remedy given under the statute is not a substitute for an ordinary civil action based on title whether such title be actual or possessory. It is a summary possessory process like the one provided for under S. 145 Cr. P. C., involving the decision on the rights of the parties, except in regard to actual possession on the date of dispossession, available to a wrongful party under certain circumstances. The underlying bases for the statutory provision are the two wholesome principles to be referred to presumably and not the principle underlying the English Statute 5 Richard II. Those two principles are: (1) to discourage persons from taking the law into their own hand and derive benefit by that process the benefit being that of getting possession so secured and also incidentally depriving the other party of the benefit under the law which but for the dispossession he will have of retaining such possession till the person who wants to wrest it from him, proves a better title; (2) that the law and orderly administration of the country require that possession even by the owner of the property should be taken by adopting the process prescribed by law and not by mere self-help.
These two principles are of universal application and are as necessary and true today as in the feudal days of old. Several decisions in this country have recognised the right of a person dispossessed to obtain the summary relief of restoration of possession, leaving it to the other party to agitate his superior claim if any in a properly framed suit. In Wise v. Ameerunnissa Khatoon, 7 Ind App 73 at p. 80 (PC) the Privy Council observed:
"But lands to which he (the plaintiff) is unable to make out a title cannot be recovered on the ground of previous possession merely, except in a suit under S. 15 of Act XIV of 1859, which must be brought within six months from the time of dispossession"
and in an earlier passage their Lordships observed:
"If the plaintiff had wished to contend that the defendants had been wrongfully put into possession and that the plaintiffs were entitled to recover on the strength of their previous possession without entering into a question of title at all, they ought to have brought their action within six months under S. 15 of Act XIV of 1859".
This dictum of their Lordships of the Privy Council amounts to this that where the plaintiff in possession without any title is to recover possession of the property of which he had been forcibly deprived by the defendant having a good title, he can only do so under the provisions of S. 9 of the Specific Relief Act and not otherwise.
(13) In Komappan Kurupu v. C. K. Chembata Ambu, 2 Mad HCR 313 Holloway and Innes JJ. speaking of S. 15 of the Limitation Act of 1895, observed that it was intended not to abridge any rights possessed by the plaintiff but to give him the right if dispossessed otherwise than by course of law to have his possession restored without reference to the title on which he held, and that which the dispossessor asserted. It was also held that in case under that section a lessor who had dispossessed otherwise than by due course of law, a lessee whose term had expired would be compelled to restore possession to the lessee. Rudrappa v. Narasingarao, ILR 29 Bom 213 at p. 216, is also a case very near in point to the case before us. There was a tenant holding over after the expiry of his tenancy and he was dispossessed without his consent by his landlord. The tenant then sued to recover back possession under the provision of S. 99 of the Specific Relief Act. It was held that the tenant was entitled to a decree for possession. In the course of his judgment Batchelor J. observed that
"a tenant holding over is no doubt a tenant on sufferance, but it does not follow that he is, therefore, liable to be evicted by the landlord proprio motu; whether the is so liable or not depends precisely upon the intention of the legislature in the section under discussion and no fair presumption as to that intention can be collected from the law prevailing in England. It may be doubted whether the holding-over is sufficient to make the tenant's possession "wrongful" within the ordinary acceptation of that word; and that such possession is still juridical possession seems to us apparent from the fact that a tenant holding over could recover as against a third party who unlawfully dispossessed him.
(14) There are a number of cases which have held that a landlord in this country, even if the term of the lease had expired will not be entitled to dispossess his tenant except by the due process of law, that is, by resorting to the remedies available to him under the law. The principle of the English law that a tenant whose term of lease had expired could not complain against his landlord's entry on his property, so long as it has been peaceably made is not therefore applicable to this country.
(15) The learned Advocate General has, however, contended that the decision in 2 Mad HCR 313 was based purely on the view taken by the majority of the judges in Newton v. Harland, (1840) 1 Scott (NR) 474: I Man and G 644 and so that view has not now been accepted by the Court of Appeal in England, the decision of this court referred to above should also be treated as no longer good law. The later decision of the court of appeal referred to above is the one reported in Hemmings v. Stoke Poges Golf Club Ltd, 1920-1 K.B. 720. There, the plaintiffs, husband and wife, the former of whom was under the service of the defendant Golf Club were allowed to live in a cottage belonging to the latter as part of his service conditions. The husband then left the service of the club but refused to give up the cottage even after notice to quit had been given. Thereupon the defendants had the plaintiffs and their furniture removed, using no more force than was necessary for the purpose and an action was laid for assault, battery and trespass. It was held that the defendants were not liable, their right of entry being a defence to civil proceedings for the acts complained of.
The Court of Appeal in that case overruled the decision in (1840)-1 Scott (NR) 474: 1 Man G. 644, which took a contrary view in a case where the landlord entered on the property, after the termination of the lease in favour of the tenant. Bankes L. J. observed:
"In the present case the defendants were undoubtedly entitled to possession of the cottage. The plaintiffs had no right and did not pretend they had any right to remain there. assuming but without deciding that the entry by the defendants was a forcible entry, the right to possession was in the defendants and the acts which are alleged as giving the plaintiffs a right of action were done in defence of their right to possession:
Blades v. Higgs, (1861) 10 C B (NS) 713 and of the possession which they had acquired by the alleged forcible entry I have no fear that the present decision will encourage lawlessness as was suggested for the respondent. A person who makes a forcible entry upon lands and tenements renders himself liable to punishment and he exposes himself also to the civil liability to pay damages in the event of more force being used than was necessary to remove the occupant of the premises or in the event of any want of proper care in the removal of his goods."
It will be seen from the foregoing observations that the decision rested on the principle of the English law that it would be open to a landlord of the premises to make a forcible entry on the property in the possession of the tenant whose tenancy had ceased so long as it was done peacefully. There was no statutory provision or even as rule of common law in that country like the one, we have under S. 9 of the Specific Relief Act which gives to the dispossessed, a summary remedy for being restored to possession leaving it to the person who claims title to agitate his claims in the usual course of law.
(16) Even apart from that consideration we are concerned in this case with the interpretation of statute law in this country and it will be no answer to say that the statute itself being based on some antiquated provision of English law, should no longer have any force.
(17) It was next contended that the respondent who had no title to the property could not invoke the provisions of S. 9 of the Specific Relief Act. That section says,
"If any person is dispossessed without his consent of immoveable property otherwise than in due course of law he may by suit recover possession thereof notwithstanding any other title that may be set up in such suit."
(18) It is argued that the words "other title" occurring in the section postulates the existence of some title in the dispossessed plaintiff, and so long as that person has no title he would have no right to apply under that section. The argument, no doubt, appears at first sight to be attractive. There can be little doubt that the person dispossessed must have some kind of title to the property at the time he was dispossessed. A mere trespasser for example who comes and squats upon anther's property cannot by that very act of trespass give himself something like possessor title if he is turned out. In the words of Bankes L. J. in the case cited above if that view of the law were correct "it must follow that the law confers upon the lawless trespasser a right of occupancy the length of which is determined only by the law's delay"
(19) In other words a wrong-doer by committing an act of trespass one day, and not for example, on the following day maintain a possessory actin if immediately after he began to squat on the property he had been turned out. This kind of possession is not a juridical possession but mere trespass.
(20) The law, however, recognises possessory right as a substantive right or interest which exists and has certain legal incidents attached to it and it recognises certain advantages as flowing from it. Such rights can be independent of the right of ownership. A person in possession is entitled, for example, to maintain his possession against the entire world except the true owner. Long adverse possession confers title on the person in possession of the property.
Further a person who continues in possession of the property after the expiration of the tenancy, cannot be regarded as a mere trespasser for his entry was lawful. Such possession would both on principle and authority be entitled to protection under S. 9. We are unable therefore to agree with the argument of the learned Advocate General that in order to entitle a person to seek relief under S. 9 of the Specific Relief Act he should have some title to the property other than possessory title. The expression "any other title" occurring in the section must mean title other than anterior possession claimed by the plaintiff. That would mean that it would be sufficient for the person in possession to have mere possessory title; the other person should have a title, other than possession for example, ownership. A tenant therefore even if he be one in possession of the property by sufferance cannot be dispossessed without his consent by the landlord without taking appropriate proceedings under the law. To accept a contrary view would be to decide contrary to the policy underlying S. 9 of the Specific Relief Act.
(21) As we said the section postulates the existence in the plaintiff on the date of eviction, at least possessory title. That means that he should have juridical possession and should not be a mere trespasser squatting on the property. Juridical possession, in one (although it might not depend on the legal title to possess as in the case of an owner), is actual possession with an intention of maintaining himself in possession. the real question to be decided in the present case, therefore, is whether the respondent who had no title to remain in possession of the property on the 16th April 1962 when he was dispossessed by the officers of the Corporation, had juridical possession of the premises. that he was in actual possession can admit of no doubt. The question then is whether he had then the intention to maintain such possession notwithstanding the fact that he had no title to remain on the property. On this point unfortunately there has been no finding by the learned Subordinate Judge.
There are however certain admitted facts in the case, which render it unnecessary for us to send the case back for a further heading. We can assume for the purpose of the present case that the officers of the Corporation entered upon the property without the consent of the tenant. But when they took over possession what was his attitude? Did he intend to hold on to the property? Obviously not. Realising perhaps that he had no title to the property he appears to have contented himself with a claim for damages for the way in which things were done. The notice issued to the Corporation on his behalf on 21-4-1962 long prior to the institution of the suit under S. 9 of the Specific Relief Act, and also his subsequent conduct in removing his articles even after the institution of the suit without even trying to obtain an order for injunction or other appropriate relief against the Corporation shows unmistakably that he had no intention of maintaining his possession of the property. It is true that he had filed a suit on the second of May 1962, for restoration of possession, but coming as it does after his claim for damages for loss of profits for 8 future months, it can only be regarded as a mere proceeding intended to lease the Corporation rather than vindicate a genuine desire to have the property and to hold on to his possession. There is really no evidence in the case apart from the institution of the suit, that he had any intention of maintaining his possession. The respondent has thus failed to show that he was in juridical possession of the property at the time when he was actually dispossessed. He was apathetic. In one sense it can even be said that though he did not consent to give up possession he was not unwilling. If the owner were to take it. He cannot therefore complain of dispossession and claim relief under S. 9 of the Specific Relief Act, as there was no dispossession of a person intending to hold on to possession. Mr. G. Ramakrishna Iyer would, however, put the respondent's case on a higher footing. he contended that after the 31st December 1961 the respondent continued in possession of the property as tenant from month to month and there being no valid notice to quit to end with the month, he should be deemed to have been in possession on the 16th April 1962, as tenant; and being dispossessed then he should be entitled to sustain the action.
There is, however, no warrant on the materials available in the case to justify any inference that there has been a tenancy from month to month. What all happened was that the Corporation declined to grant any lease beyond 31-12-1961. Efforts were made by the respondent to make the Corporation to reconsider its decision and those efforts failed. Pending disposal of the application made by the respondent, the Corporation permitted him to continue in possession of the property. That could in the circumstances be referable only to a licence; even otherwise the monthly lease, if any, must be held to have terminated by efflux of time by 31st of March 1962 till which date alone the respondent had paid rent. Even earlier the Corporation had terminated his right and demanded possession of the property being delivered by 14th April 1962.
(22) The only other question that remains for considerations whether this court can under its powers of revision, interfere with the decree passed in the present case. Normally where an alternative remedy by way of suit is available, this court seldom interferes in revision; but in the present case, if that course were to be adopted it would mean that the respondent who has no title to the property at all, should be allowed to go back and to squat on the property and be there so long as he is capable of delaying any suit that might be filed by the corporation to evict him. We therefore consider that in the interests of justice this civil revision petition should be entertained. On merits of the case the lower court has clearly exceeded its jurisdiction by directing restoration of possession to a person not entitled to any relief under S. 9 of the Specific Relief Act as he had no possession at the time of dispossession and as he was not unwilling to give up possession. The civil revision petition succeeds and is allowed. Having regard to the circumstances of the case, there will be no order as to costs either here or in the court below.
23. Petition allowed.