ANANTA KUMAR SARKAR Vs. MEGHU KURMI

JUDGEMENT

(1.) The main point taken in this case is that though the plaintiff's suit purported to be one under section 9 of the Specific Relief Act, in substance it was a full fledged title suit as is contemplated under section 8 of the Act. As it is quite clear and as was pointed out in many cases including Lachman Vs. Shambhu Narain, I.L.R. 33 All. 174 , suits under sections 8 and 9 of the Specific Relief Act are mutually exclusive; that if a suit is brought under section 9 for recovery of possession, questions of right or title cannot be raised or determined while in a suit under section 8, a plaintiff sues to establish his title for recovery of possession. In the present case, on turning to the plaint, we find that the plaintiffs did mention how they got title to the land on the basis thereof, that they were dispossessed by the defendants and that they therefore wanted recovery of possession of the land on ejectment of the defendants. There was also a prayer that the defendants be directed to remove the huts they had erected on this land. The learned Munsif came to the conclusion that the plaintiffs were in possession, that the defendants had dispossessed them, that the suit was brought within six months from the date of dispossession and gave them the decree they asked for. He also made an order that the defendants should remove the huts within a certain time and if this was not done the plaintiffs would be entitled to have the huts removed in execution of the decree. It was held by this Court in Tilak Chandra Dass Vs. Fatik Chandra Dass I.L.R. 25 Cal. 803 that an order of this nature is beyond the scope of a decree under section 9 of the Specific Relief Act In that case, their Lordships further passed an order remitting the case to be tried as a regular suit on title. From the report, it is not clear that what was really stated in that case in the plaint though it appears that there the suit also purported to be under Sec. 9. Obviously, where there has been no decision of title, it will be wrong to pass any order regarding the structures on the land. That was the view which was also taken in a later decision by Sen J., namely, in Sona Mia Vs. Prakash Chandra Bhattacharyya, 44 C.W.N. 895. In this case the order of the learned Munsiff evicting the defendants from the land was maintained but the order regarding the structures erected on the land by the defendants was set aside. It seems to me that even though in Tilak Chandra Dass Vs. Fatik Chandra Dass, I.L.R. 25 Cal. 803 mentioned above, this Court remitted the suit for hearing as a Title Suit, the decision should not be read as laying down a proposition of law that in any case where such an order is passed, the court must proceed on the basis that it is in substance a title suit. Mr. Mitter has placed before me the entire judgment of the court below and it seems clear therefrom that it was really the defendants who wanted to satisfy the court that what appeared to be possession of the land by the plaintiffs was not such possession and that it was merely the enjoyment of a phalkar right. The learned Munsiff rejected this contention and in doing so, he did make certain statements which may appear to be findings of title. In my judgment, these statements, in so far as they were findings of title, have no legal effect but merely because the learned Munsiff referred to this question in rejecting the defendants case that the plaintiffs enjoyed only a Phalkar right and apart from that had no possession of the land is not, in my judgment a sufficient ground for holding that the suit was in substance a suit for title as is contemplated in section 8 of the Specific Relief Act. It was certainly open to the plaintiffs to bring a suit under section 8 of that Act. They did not do so. They were content to bring a suit under section 9. I do not think the court is justified in refusing to give relief under that section merely because they have mentioned their title, apparently to explain their possession.

(2.) I would, therefore, maintain the order passed by the learned Munsiff but set aside the order passed by him as regards the removal of the huts. Mr. Mitter states that his clients in-tend to file a regular title suit immediately. In view of this, it is ordered that the order of eviction be not given effect to within one month from this date. Parties will bear their own costs in this Rule. The Rule is accordingly disposed of.