NOBIN DAS Vs. KAILASH CHANDRA DEY

JUDGEMENT

(1.) We are invited in this Rule to sot aside a decree made under Section 9 of the Specific Relief Act on the ground that it has been made without jurisdiction, inasmuch as that provision of the statute had no application to the circumstances of the case.

(2.) The facts, so far as they are necessary to state them for the purposes of the present decision, may be briefly narrated. One Nabin was the tenant of the disputed land, He executed a usufructuary mortgage in favour of the plaintiff and placed him in possession. The plaintiff thereupon settled the land with tenants. The latter were evicted by the defendant, it is alleged, at the instance of the superior landlord of Nabin. The tenants thereupon relinquished the land in favour of the plaintiff. The plaintiff then brought this action under Section 9 of the Specific Relief Act for recovery of possession upon the allegation that he had been dispossessed within the meaning of that section within a period of six months antecedent to the suit The question in controversy between the parties is whether, in the events which have happened, the plaintiff was dispossessed within the meaning of Section 9 of Act I of 1877.

(3.) It has been argued on behalf of the defendants-petitioners that as the plaintiff was admittedly not in physical possession of the land, but held possession through his tenants, he cannot be said to have been dispossessed within the meaning of Section 9 of the Specific Relief Act In support of this proposition, reliance has been placed upon the cases of Tarini Mohun Mozumdar V/s. Gunga Prosad 14 C. 649 Sonatun Shome V/s. Sheikh Helim 6 C.W.N. 616 and Fadu Jhala, V/s. Gour Mohum Jhala 19 C. 544 (F.B). On behalf of the plaintiff, it has been argued, on the other hand, that he was in possession of the land through his tenants and as these tenants were evicted and subsequently relinquished the land in his favour, he has been dispossessed and is entitled to maintain a possessory suit. In support of this position reliance has been placed upon the cases of Bindu Bashini Chandhurani V/s. Srimati Jahnavi Chaudhurani 13 C.W.N. 303 : I Ind. Cas. 150 and Jagannatha Charry V/s. Rama Rayer 28 M. 238. Before we determine which of these contentions should prevail, we may observe that the expression "possession" is not defined in the Specific Relief Act. The question, therefore, arises whether we should put a restricted interpretation upon the term dispossessed" and apply it only to cases in which a person in actual possession of land has been evicted therefrom. In our opinion, there is no good reason why this narrow construction should be pot upon the expression "dispossessed". In the case before us, the plaintiff was originally in actual possession of the land. He was at that stage entitled to use the property in any way he Close. He settled the land with tenants. The result was, not that he was deprived of his possession, hut that the mode in which he held possession of the property was altered. His tenants came into physical possession of the land and he held possession thereafter by receipt of rent from them. When, therefore, his tenants were forcibly ejected from the land by the defendants, it may reasonably be held that he also was dispossessed. The case before us is further strengthened by the additional fact that the tenants, after they had been evicted, relinquished the land in favour of the plaintiff so that the plaintiff thereafter became entitled to have physical possession of the land. Under these circumstances, we hold that the plaintiff was dispossessed within the meaning of Section 9 of the Specific Relief Act when his tenants were evicted from the land by the defendant. The view we take is supported by the decision of this Court in the ease of Bindu Bashini Chaudhnrani V/s. Srimati Jahnavi Chaudhnrani 13 C.W.N. 303 : 1 Ind. Cas. 150 and by the decision of the learned Judges of the Madras High Court in Jagannatha Charry V/s. Rama Rayer 28 M. 238. It has boon suggested, however, on behalf of the defendants that there is really a conflict of judicial decisions on this point. It may be conceded that at first sight some of the decisions to which reference has been made may seem difficult to reconcile ; but upon a closer examination of the judgments they appear to be distinguishable. In the case of Tarini Mohan Mojumdar V/s. Ganga Prasad Chuckerbutty 14 C. 649, the tenant in actual possession of the land had not been evicted, although he was a tenant under the plaintiff; he attorned in favour of another person and refused to pay rent to his landlord. The landlord sued to recover possession from the rival claimant who had accepted a qabuliat from the tenant. It was held by this Court under these circumstances that the refusal on the part of the tenant to pay rent to his landlord and the attornment by him to the rival claimant did not constitute dispossession of the plaintiff within the meaning of Section 9 of the Specific Relief Act. This view is obviously sound in principle. The tenant was throughout in occupation of the land; no doubt, he denied the title of his landlord and attorned to a stranger; but, plainly, that could not be treated as dispossession of the landlord by the rival claimant. The case of Sonatan Shame V/s. Sheikh Helim 6 C.W.N. 616, is also, distinguishable on two grounds. In the first place, it is obvious on an examination of the judgment that the decision was based upon the admission of the learned Vakil for the petitioner that oven though the tenant may have been evicted from a parcel of land, that could not he treated as dispossession of his landlord sufficient to sustain an action under Section 9 of the Specific Relief Act. In the second place, it does not appear that the tenancy had terminated before the suit under Section 9 was commenced. On the other hand, so far as we can gather from the judgment, the suggestion was that the tenant had colluded with the rival claimant. If so, at the time when the action under Section 9 was commenced, the tenancy might justly be treated as still existing, and this might justify the conclusion that a possessory suit was not maintainable. The case of Fadu Jhala V/s. Gour Mohan Jhala 19 C. 544 (F.B) admittedly does not touch the question raised before us. There are some observations by one of the learned Judges at page 571 of the report which may apparently assist the contention of the petitioners, but we are not prepared to accept those observations as embodying an actual decision of the question before us. There are two other cases also, to which reference was made namely, Hindu Bashini Chaudhnrani. V/s. Srimati Jahnavi Chaudhurani 13 C.W.N. 307 (note) : 1 Ind. Cas. 151 and Janki Nath Rai Chowdhury v. Dinamoni Chowdhurani 13 C.W.N 305 : 1 Ind. Cas. 152 but the question although raised there, was not actually decided. Upon a. review then of the authorities, we must hold that the view we take is not only well-founded on principle, hut is also not opposed to any actual decision of this Court.