Stevens and Harington, JJ.
1. The petitioner sued under Section 9 of the Specific Relief Act for obtaining possession of a hat from which, he alleged, he had been illegally dispossessed by the opposite party. He sets forth in his plaint that he held possession in right of a dur-ijara for a term of years of a certain hat within boundaries specified at foot of the plaint and that the possession which he had held was by collecting tolls, rents, and. the like. He alleged that on a certain day the defendant had by wrongful show of force realised the tolls from the hat in question in spite of his remonstrances and so illegally dispossessed him, and he prayed that under the provisions of Section 9 of the Specific Relief Act possession of the Mt might be given to him as before.
2. The Munsiff held, on the authority of the Full Bench case of Fadu Jhala v. Gour Mohun Jhala (1892) I. L. R. 19 Calc. 544., that, inasmuch as the hat appears en the face of the plaint to be an incorporeal right to collect tolls from persons frequenting the Mt to sell goods, the suit was not entertainable under Section 9 of the Specific Relief Act.
3. The present rule was granted to show cause why the judgment of the Munsiff should not be set aside and such other orders made as to this Court might seem fit.
4. It has been sought by the learned pleader who appears in support of the rule to distinguish the present case from that upon which the learned Munsiff has relied. It has been pointed out that in the Full Bench case (1892) I. L. R. 19 Calc. 544., the question related to a suit for the possession of a right to fish, in a khal, the soil of which not belong to the plaintiff, whereas the present case relates hat within certain specified boundaries.
5. We think that the learned Munsiff was correct in the view which he took of the case. In considering how far the present case is affected by the decision of the Full Bench (1892) I. L. R. 19 Calc. 544. we have to look, not merely to the precise circumstances of that case, but also to the ground of the decision. We cite the following passage from the judgment of the learned Chief Justice at p. 547: 'It is, I think, apparent from the section itself, read as a whole, that the immoveable property intended to be dealt with by it is something of which actual physical possession can be given and taken: in other words, some piece of land or something permanently attached to the land, and that the words as they appear in. the section cannot include an incorporeal right, which must always remain in the possession of its owner, though he may for any reason be prevented- from exercising it.' This was the view of the learned Judges of the Court, who with the learned Chief Justice comprised the majority of the Full ' Bench. We will cite further the following passage from the conclusion of the judgment delivered by Ghose J.--'I am inclined to think that Clause (a) in Section 5 is the only clause which provides for the specific relief contemplated by Section 9 of the Act, viz., by taking possession of certain property and delivering it to a claimant.'
6. We think that on the face of the plaint it would be impossible to deliver possession of the hat in question to the plaintiff in such a way, and that upon the principles laid down in the judgments of the majority of the Full Bench as to the application of Section 9 of the Specific Relief Act, the present case cannot be brought within that clause. It seems to us that it is nothing to the point that the hat was stated in the plaint to be within certain specified boundaries. The question is as to the mode of possession. According to the plaint possession was exercised by the collection of tolls and rent and the like. That appears to us to be, in the words of the learned Chief Justice at p. 547' 'an incorporeal right which must always remain in the possession of its owner, though he may for any reason be preve(sic) from exercising it.' If the plaintiff is entitled to receive(sic) tolls, rents, and the like from the tenants and persons frequen(sic) the hat, he has not been dispossessed of the hat merely by (sic) action of the defendants in causing such rents and tolls to be given to them by those persons instead of to the plaintiff. If those tolls, rents, and dues are really payable to the plaintiff, it would be no answer to any claim made by' him against the persons liable to pay them that they had paid them to the defendants.
7. There has certainly been no dispossession which could be remedied in the manner provided by Clause (a) of Section 5 of the Specific Relief Act.
8. The rule is discharged with costs.