ASHUTOSH DAS Vs. SUSHMA RANI DAS

JUDGEMENT

(1.) This is an application filed against the judgment and order dated 20.7.91 passed by the learned Munsiff No 1, Karimganj in Title Suit No. 317 of 1987 under Section (i of the Specific Relief Act dismissing the suits with costs. The Judicial Magistrate Korimganj held that the suit was not maintainable inasmuch as the plaintiff was not in exclusive possession of the property and no suit may be filed by such person under Section 6 of the Specific Relief Act.

(2.) Mr. Dhar appearing for the petitioner submits that the trial Court i.e. Court below has proceeded in total disregard to the question of law involved in the aforesaid matter. He has submitted even a co-owner or a person in joint possession who has been dispossessed can file a suit for relief under Section 6 of the specific Relief Act. In support of his contention, Mr. Dhar referred to a judgment reported in AIR 1940 Allahabad 261. He also refers to a decision of Calcutta High Court reported in AIR 1916 Cal. page 562. The said judgment following the judgment of the Calcutta High Court has held as follows :

(3.) As against the said judgment Mr. Das appearing for the opp. parties has referred to the judgment reported in AIR 1975 Jammu and Kashmir 47 wherein it has been held that Under Section 9 of the Old Act which is Section 6 of the present Act, it has been held that what is being intended was the exclusive possession and not joint possession and where it is not possible to get such a possession, the suit itself shall not be maintainable. The said judgment has considered both the Allahabad decision as well as Calcutta. I am inclined to agree with the ratio of Calcutta and Allahabad decision and hold that recovery of possession under Section 6 of the Act is not meant recovery of exclusive possession. Even if property is jointly possessed, the suit is maintainable under Section 6. From the petition dated 21.4.87 it appears that the petitioner was in possession of the property and same was forcibly taken possession by opp. party. The said fact is obvious 'torn the judgment dated. 26.4.91 passed by the Judicial Magistrate, 1st Class, Karimganj in C.R. Case No. 1119 of 1987.