1. We are of opinion that this rule must be discharged.
2. The facts briefly stated appear to be these:
3. The plaintiff through his raiyats had been in possession of certain lands. In 1297, owing to great floods, these lands were completely submerged and the plaintiffs tenants sought safety for themselves and property by forsaking, the submerged lands and going to some higher lands. When the flood was subsiding the plaintiff's raiyats intended to go back and occupy the lands which they had been obliged to forsake owing to the flood. The defendant was anxious to get possession of these lands, and as a matter of fact, when the flood receded there was a race between the plaintiff's raiyats and the defendant's raiyats as to who should get possession of the flooded lands first. The defendant's raiyats succeeded in the race and were the first to gain physical possession by putting foot upon the submerged lands. Thereupon the plaintiff brought suit under the provisions of Section 9 of the Specific Relief Act and the Sub-Judge has given a decree in favour of the plaintiff.
4. The rule was granted by another Bench calling upon the plaintiff to show cause why the decree of the Sub-Judge should not be set aside, upon the ground that the Sub-Judge had no power to entertain the suit.
5. It has been argued to-day by Mr. Advocate General and Mr. Bonnerjee that the Sub-Judge had no jurisdiction to entertain the suit, for this reason. It is said that the provisions of Section 9 of the Specific Relief Act only apply where there has been an anterior and actual physical possession by or on behalf of the party against whom the suit is brought under Section 9 of the Specific Relief Act, and the case in Tarini Mohun v. Gunga Prasad 14 C. 649, a case decided by the Chief Justice and Mr. Justice Ghose, is cited as an authority for that proposition.
6. It does not appear to us to be necessary to express any opinion upon that case or to say what does or does not constitute a dispossession within the meaning of Section 9 of the specific Relief Act. Nor does it seem to us to be necessary to say anything as to whether an erroneous finding upon the question of what does or does not constitute dispossession is an exercise of jurisdiction by the Sub-Judge with which he was not vested according to law. This court has always refused to exercise the extraordinary powers conferred upon it by Section 622 (which we may call a revisional section) unless it is satisfied that either great injustice or great inconvenience would follow from its not exercising that power. We do not think that any injustice has been done to Mr. Advocate-General's client, neither do we think that he would suffer any great amount of inconvenience by the order of the Sub-Judge. So far from their having suffered any injustice it appears that if there are any merits in this case (upon which we express no opinion as we have not read the evidence) upon the admitted facts, the merits appear to us to be with Mr. Evans' client, because it is admitted that when the floods receded the defendant resorted to a mere subterfuge in order to endeavor to obtain possession of the lands which has previously rightly or wrongly been in the possession of the plaintiff through his raiyats. Therefore we do not consider that it would be a reasonable exercise of discretion to interfere in this case.
7. We think this rule should be discharged. We desire to add that this appears to have been the view of the Judges who granted the rule for we find them saying 'we have some doubt whether Section 622 applies to such a case, and whether the Court having regard to the recent decisions of the Privy Council upon Section 622, has power in this case to interfere under that section. We mention this lest the fact of issuing the rule should be supposed in any way to preclude the other side in showing cause from contending that the Court cannot act under that section. A rule not dissimilar to this was granted in a case reported in Tarini Mohun v. Gunga Prasad 14 C. 649 (the case we have referred to) by the Chief Justice and Justice Chunder Madhub Ghose. We grant the rule with these observations and the record will be sent for.'
8. We assess the hearing fee at five gold mohurs.