NASIM AHMAD Versus RASOOL BAKHSH

1. Respondent No. I filed a suit under section 9 of the Specific Relief Act for possession of the house in dispute alleging that he was in possession of the same through his tenant defendant respondent No. 2 who was dispossessed unlawfully by defendant -respondent No. 1. It was further alleged that defendant- respondent No. 2 had refused to take any steps for restoration of possession and this gave a cause of action to the plaintiff for filing of the suit. The suit was contested only by the petitioner and the following issues were framed:‑

(1) Whether the plaintiff was dispossessed by the defendant from the house in suit without due course of law and within six months of the institution of the suit? O. P. P.

(2) Whether the suit is not competent because the plaintiff was not in physical possession of the house in dispute at the time of alleged dispossession? O. P. D.

(3) Whether the suit has been properly valued for the purposes of court‑fee and jurisdiction? O. P. P.

(4) Whether the defendant is entitled to special costs under section 35‑A of the C. P. C.? If so, of what amount? O. P. D.

(5) Whether the map filed with the plaint is correct? If not what its effect? O. P. P.

(6) Relief.

2. On consideration of the issues, a decree for possession of the house was passed in favour of the plaintiff‑respondent No. 1 against the defendant‑petitioner with costs, on 17 th December 1966. This revision petition is directed against this judgment and decree.

3. The learned counsel for the petitioner challenged the judgment and decree of the trial Court on issue No. 2 only and argued that the plaintiff not being in actual physical possession, cannot file a suit under section 9 of the Specific Relief Act. For this proposition, he relied upon Abdullah Khan v. Faizullah Khan (P L D 1950 Pesh. 35), Sona Apia v. Parkash Chandre Batachariya (A I R 1940 Cal. 464). I found that this view has also been taken in Abdul Jamil v. Haroon (P L D 1969 Kar. 78), Veeraswami Mudall v. P. R. Venketchala Mudali ((1926) 92 I C 20), Rama Manemma v. Basavayya (A I R 1934 Mad. 558), Sonaton Shome v. Sh. Helim (6 C W N 616). An observation in Fadu Jhala v. Gour Mohan (I L R 19 Cal. 544) also supports the petitioner. A different view has, however, been taken in a large number of cases where it has been held that the dispossession of the tenant is, in fact, a dispossession of the landlord and the landlord can sue the trespasser. In some cases, this statement of law has been qualified as will be seen later, but the consensus is in favour of the maintainability of the suit whether without qualification or subject to qualification, Fazal Muhammad v. Muhammad Usman (P L D 1970 Lah. 560), Bindhe Bhashink Chaudhrani v. Jahanavi ((1897) 13 C W N 303), Bindhi Blulshini Chowdhrani v. Janohbi Choudhrani ((1892) 13 C W N 307), Janeki Nath Ray v. Dinamani Chowdhrani ((1909) 13 C W N 305), Shiama Charan v. Mohd. Ali ((1909) 13 C W N 835), Nabin Chandre Dass v. Kaylas Chandre Dass ((1910) 12 C L 1483), Nobin Dass v. Kailash Chandre Dey ((1910) 15 C W N 294), Akhil Chandre Day v. Akhil Chandre Baswas ((1910) 15 C W N 715), Sardar Nehal Singh and others v. Raja Ragre Roj Bahadar Singh ((1916) 32 I C 202), Sahib Pakhio v. Jurnromal Sahromomal (121 C 190 (Sind)), Ratan Lal Ghelab Rai v. Amar Singh Roop Singh (A I R 1929 Bom. 467) and Jagan Nath Churry v. Rana Rayer (I L R 28 Mad. 238). This view has also found favour with the Indian High Courts after the Partition of the sub‑continent. In Thu Vaengada Konan v. Venkata Chala Konan (32 I C 198), it was held that though a landlord is not entitled to immediate dispossession, he may obtain a decree for possession of the reversion and for formal possession. In Ratan Lal Ghelaba Bhai v. Amar Singh Raol there are some observations that even if the plaintiff cannot sue alone, he should join his tenant as a co plaintiff. The ratio for deciding that it is open to the landlord to file a suit under section 9, was also the same as in 32 1 C 198= I L R 39 Mad. 1042, that the landlord could sue for injury to his reversion. In the Peshawar case Abdullah Khan v. Faizullah Khan also an observation was made that "even if Muhammad Ayyaz and his mother were living in this house on behalf of the plaintiff, the plaintiff could only sue if the persons actually dispossessed was not willing to sue."

4. I entirely subscribe to the view that a suit by a landlord, In case of dispossession by force of his tenant by a trespasser, is competent. Section 9 does not talk of actual possession at all. It provides that "if any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may by suit recover possession thereof notwithstanding any other title that may be set up in such suit." The word "possession" includes actual possession, or possession, in fact, as well as constructive possession or possession in law. By settling the land with tenants a landlord is not deprived of possession but he only alters the mode in which he holds possession. Separation of a person from either type of possession will undoubtedly be his dispossession. The dispossession of the tenant, therefore, is In fact a dispossession of the proprietor. Even the cases cited by the petitioner's counsel do not appear to have taken a divergent view on this question. The ratio of those cases, in fact, appears to be that if the landlord is allowed to file a suit for actual possession under section 9 of the Specific Relief Act, an anomaly will be created as the mode of possession that would be decreed in his favour would be different from the mode which he was enjoying at the time of dispossession of his tenant. In view of the clear words of the section, however, which does not confine itself to dispossession of a person who is in actual possession, there seem to be no warrant for resorting to an interpretation which restricts the scope of the specific provision itself. In fact, it would create an anomaly fn the sense that while the dispossessed tenant can file a suit for possession on the basis of Possessory right only, in case of denial of the tenant to file a suit the landlord will be forced to file a suit on the basis of his title only. Respectfully I also dissent from the view taken In 32 I C 198 that in such a case the landlord can get only formal possession of the property. If a tenant has a mind to secure possession of the property and joins the landlord as a co‑plaintiff or files a suit independently of the landlord, he would certainly be entitled, except in the case of termination of his tenancy before the decree, to actual possession while the decree in favour of the landlord may be that of formal possession. But in cases where the tenant has no intention to get back the possession of the property or his tenancy itself stands terminated, the landlord cannot be kept back from securing the actual possession of the property from the trespasser.

5. In the present case, the suit was filed on the basis that the tenant had refused to get possession of the house and the tenant in his written statement supported the plaintiff the plaintiff, therefore, had a right to get actual possession under section 9 of the Specific Relief Act from the petitioner. The petition has no force and is dismissed. As nobody appeared on behalf of the respondents, there will be no order as to costs.

6. S. A. H. Petition dismissed.