1. We are asked to hold that the plaintiff was not dispossessed of immoveable property within the meaning of Section 9 of the Specific Relief Act (I of 1877) and consequently that the Munsif had no power under that section to give her a decree for possession.
2. The suit related to about 800 bighas of chur land and the facts found are that that land was in the occupation of persons who were cultivating it as the tenants of the plaintiff to whom the rent was paid, and that the defendants' men forcibly drove all those tenants of the land and took possession of it for the defendants. On these facts the Munsif found that the plaintiff had been dispossessed.
3. The dispossessed tenants are not parties to the suit. It is argued that the section only applies to cases in which there was an actual bodily possession of which the plaintiff was deprived and it is said that the only persons who could have maintained a suit under the section to recover possession of this land were the tenants who had been dispossessed.
4. We have not been referred to any case in which this narrow construction of the section has been adopted and we are not prepared to adopt it.
5. The Court acting under the section has to find a dispossession and in order to find that it must find a previous possession of the land. As Sir Richard Couch pointed out in Sutherland's case 9 B.L.R. 229, 18 W.R. 11. Cr there are cases in which a person would properly be said to be in possession although there was no bodily possession by him, such as the possession of a master by his servant, the possession of a landlord by his immediate tenant, the person who pays rent to him, the possession of the person who has the property in the land by the usufructuary--all these cases, he considered, came within the meaning of the word 'possession' as used in Section 318 of the old Criminal Procedure Code (XXV of 1861). The Magistrate had under that section to determine, if he could do so, who was in actual possession of the land about which the dispute existed at a particular time and he was to maintain that person in possession.
6. It does not of course follow that the possession contemplated in Section 9 of the Specific Relief Act is the same as that but we see no reason why it should not be. We are certainly not prepared to hold 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. We think there are cases and this is one of them in which the complete ouster of the tenant in actual occupation of the land is the ouster of his immediate landlord to whom the rent is paid.
7. We need not refer to the class of cases in which there is an intermediate holder between the cultivating tenant and the superior landlord asserting dispossession or to the class of cases in which a tenant holding for a term is dispossessed of a portion of his land but the tenancy as regards the whole continues. We are dealing only with the facts of this case as found. Here if the tenants had left or abandoned the land it would have come at once into the direct possession of the plaintiff. Their possession was her possession and she has, we consider, been dispossessed within the meaning of the section. It is said that the tenants ought at least to have been made parties to the suit, we need not consider that as a non-joinder of parties would not affect the jurisdiction of the Court and we are dealing only with the jurisdiction of the Court to entertain the suit under the section in question. The case of Tarini Mohun Mazumdar v. Gunga Prasad Chuckerbutty 14 C. 649 is clearly distinguishable. There the tenants continuing in possession attorned to the defendants and refused to pay rent to the plaintiff, it was held that this was not a dispossession of the plaintiff within the meaning of Section 9. Nothing more was decided. Stress was laid on the circumstance that the plaintiff's raiyats were in possession and although there are some remarks in the judgment which might favour the contention now put forward, the Court abstained from expressing any opinion as to what the plaintiff's position would have been if the plaintiff's raiyats had been dispossessed.
8. Accepting the facts as found by the Munsif we think the case comes within the section and we discharge the rule with costs, 5 gold mohurs.