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Tilak Chandra Dass Vs. Fatik Chandra Dass and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1898)ILR25Cal803
AppellantTilak Chandra Dass
RespondentFatik Chandra Dass and ors.
Excerpt:
decree - possessory decree--specific relief act (i of 1877), section 9. - tottenham and ameer ali, jj.1. this is a rule to show cause why the decree passed by the munsif of madaripur, ostensibly under section 9 of the specific relief act, should not be set aside. the grounds upon which the rule was obtained were that upon the face of the plaint it was clear that, although section 9 of the specific relief act was cited in the plaint as the law under which relief was sought, the prayers contained in the plaint clearly do not all come under that section; and that the decree passed by the munsif went beyond a mere possessory decree sanctioned by that section.2. we think that this is so. the plaintiff sued to recover possession of a certain portion of land of which he said he was dispossessed by the defendants, and he went on to ask that the defendants might be.....
Judgment:

Tottenham and Ameer Ali, JJ.

1. This is a rule to show cause why the decree passed by the Munsif of Madaripur, ostensibly under Section 9 of the Specific Relief Act, should not be set aside. The grounds upon which the rule was obtained were that upon the face of the plaint it was clear that, although Section 9 of the Specific Relief Act was cited in the plaint as the law under which relief was sought, the prayers contained in the plaint clearly do not all come under that section; and that the decree passed by the Munsif went beyond a mere possessory decree sanctioned by that section.

2. We think that this is so. The plaintiff sued to recover possession of a certain portion of land of which he said he was dispossessed by the defendants, and he went on to ask that the defendants might be ordered to pay over to him the cost of removing certain huts erected by them, and of filling up excavations made. These prayers are beyond the scope of Section 9 of the Specific Relief Act; and the decree passed by the Munsif, providing that the costs of removing the huts and filling up excavations should be ascertained in execution of the decree and be made payable by the defendants, is also in our opinion beyond the scope of a decree under Section 9.

3. It seems to us, therefore, that the decree of the Munsif must be set aside, and the case be remitted to him to be tried as a regular suit on title. It will, of course, be open to the plaintiff, either to amend his plaint or to file a written statement, disclosing what his title really is.

4. This rule is made absolute. The costs of this rule will abide the result. We fix the hearing fee at one gold-mohur.


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