RAJ KRISHNA PARUI Vs. MUTKTARAM DAS

JUDGEMENT

(1.) We are invited in this rule to set aside a decree by which a suit commenced by the petitioners under Section 9 of the Specific Relief Act has been dismissed. The learned Judge in the Court below correctly set out the issue for trial in these terms ?Were the plaintiffs in possession of the land in dispute at any time within six months before the institution of the suite Is the plaintiff's allegation of dispossession true? In the decision of this issue, however, he went first into the question of preferential title which he decided in favour of the defendants. He next proceeded to deal with the question of possession. With regard to this, he observed that both parties had adduced oral evidence in support of their respective allegations, and that the crucial point was whether the plaintiffs had been in lawful possession of the land within the statutory period of six months. This question he answered in the negative, for the reason that the plaintiffs had failed to establish their title to the property. It has been argued before us in support of the Rule that this view of the law is clearly erroneous. In our opinion this contention is well-founded and must prevail.

(2.) Section 9 of the Specific Relief Act 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 a suit instituted within six months from the date of dispossession, recover possession thereof, notwithstanding any other title that may be set up in such suit. The concluding words of the section make it clear that the question of title is not to be determined in a suit commenced under Section 9. But, it is expressly provided that nothing in the section shall bar any person from suing to establish his title to such property and to recover possession thereof. The sole point for determination in a suit of this description is whether the plaintiffs were in possession of the disputed property within six months previous to the institution of the suit, and whether they had been deprived of such possession by the defendants otherwise than in due course of law. It is immaterial, if the plaintiffs were in possession, that such possession was without title. It may be conceded that what the plaintiffs have to prove is possession of the disputed property and not mere isolated acts of trespass over that property. The distinction between what may be called juridical possession and an act of trespass was pointed out by the learned Judges of the Bombay High Court in the case of Amir-ud-din V/s. Mahamad Jamal 15 B. 685, where reliance was placed upon an earlier decision of the same Court in Dadabhai Narsidas V/s. The Sub-Collector of Broach 7 Bom. H.C.R.A. C.J. 82, in which Mr. Justice Melville had explained the distinction between an act of possession and an act of mere trespass. The distinction may be illustrated by concrete cases. To take one illustration, in the case of Doe V/s. Dyeball M. & M. 346 : 3 Car. & P. 610, a person had received the key of a room from the lessor of the plaintiff and had held possession of the premises for about a year, when the defendant broke in at night and took forcible possession. The question, whether the plaintiff had such possession as was sufficient to entitle him to maintain an action in ejectment without proof of title, was answered in the affirmative, because although the plaintiff might not have derived his possession from a person who had title to the disputed property, yet as he was in occupation of the premises for a considerable length of time, it could not be disputed that he had juridical possession. To take another illustration, reference may be made to the case of Browne V/s. Dawson 12 A. & E. 624; 4 P. & D. 355; 10 L. J. Q. B. 7. There a school master, who was in possession of the school premises, made over the key to the authorities of the school who entered into possession. He returned the next day and entered into the premises by force. The question arose whether such entry gave him possession or whether it was a mere act of trespass. Lord Denman held that there was no such possession by mere entry as a wrong doer as would entitle the plaintiff to maintain a possessory action. The learned Chief Justice observed that a mere trespasser could not, by the very act of trespass, immediately and without acquiescence, give himself what the law understood by possession against the person whom he ejected, and drive him to produce his title, if he could without delay reinstate himself in his former possession. The judgment of Sir Charles Sargent in the case of Amir-ud-din V/s. Mohamed Jamal 15 B. 685, to which reference has already been made, lays down substantially the same principle, although there is perhaps one observation in that judgment which might prove misleading. The learned Chief Justice observed that in the earlier case decided by Mr. Justice Melville, be had expressed an opinion that a mere trespasser could not succeed in the possessory action on the ground that the plaintiff in such a case did not acquire juridical possession, and, therefore, could not be dispossessed. Juridical possession here must be taken to be distinguished from a mere act of trespass. It is not equivalent to what the learned Judge in the Court below in the present case holds to be lawful possession, It may be difficult to frame any comprehensive formula to distinguish an act of possession from an act of trespass. But it may be generally observed, in the first place, that in order to entitle the plaintiff to succeed on the ground of possession he must prove that he exercised acts, which amounted to acts of dominion: the nature of these acts of dominion must obviously vary with the nature of the property. A particular act, which in the case of one property may be sufficient to indicate control over that property, may, in the case of another property, amount to nothing more than an isolated act of trespass. It may also be remarked that such acts of dominion, though exercised over a part only of the property, may be evidence of possession of the whole. This must, however, be dependent upon the character of the property and the nature of the act. The second element, which may require consideration, is, whether the act of dominion is exclusive. If each of two persons commits what may be deemed acts of trespass upon the disputed property, and it is ultimately proved that one of them has title and the other has not, the act of the rightful owner would not be an act of trespass, but would amount to an act of possession, whereas in the case of the wrong doer such act would properly be deemed nothing more than an act of trespass. The judgment of the Court below in the present case is defective inasmuch as it does not specify the acts which are alleged by the plaintiffs to amount to acts of possession. If the occupation by the plaintiffs, as indicated by those acts, has been peaceable and uninterrupted and has extended over a sufficient length of time, the inference may properly be drawn that the plaintiffs were in possession. On the other hand, if the plaintiffs are not able to prove anything beyond isolated acts of trespass which were not acquiesced in by the defendant, they cannot legitimately claim to have been in possession of the property.

(3.) The result is that this Rule is made absolute, the order of the Court below discharged and the case remanded in order that the question of possession may be re-tried upon the evidence on the record as it stands. Costs of this Rule will abide the result. We assess the hearing fee at two gold mohurs.