MUSAMMAT MAKTULA Vs. KAULESHWAR MISRA

JUDGEMENT

(1.) ONE Ajudhia Pande was the owner of the property in suit. After his death, the names of his widow, Musammat Genda and that of his uncle's widow Musammat Phulmati were entered in the revenue papers. After Phulmati's death, Genda alone transferred the property in dispute to Maktula and Balram, father of Bishunath. According to the allegation of the plaintiffs the defendants dispossessed the plaintiffs on the 15 of July 1907. The plaintiffs, therefore, instituted a suit on the 4 of October 1907. According to the frame of the suit it was a suit for possession and for a declaration of the plaintiff's title to the property. The defence was that the defendants were in possession of the property as owners, that the sale-deed executed by Genda was not real and genuine, and that, if genuine, it was without legal, necessity. The Court of first instance came to the conclusion that as the names of the defendants appeared in the revenue papers before the revision of the last settlement, it was conclusive as to their possession, and dismissed the suit. The lower appellate Court confirmed the decree of the first Court on the ground that the sale by Genda was without legal necessity. That Court found that the plaintiffs were dispossessed on the 15 of July 1907. The plaintiffs have preferred a second appeal to this Court. On the authority of Parbhu Lal V/s. Ram Charan A.W.N. (1907) 244 : 4 A.L.J. 601, which follows Ram Harakh Rai V/s. Sheodahal Joti 15 A. 384 and Monsi V/s. Kashi A.W.N. (1897) 145, the learned Vakil for the appellants argues that the plaintiffs under Section 9 of the Specific Relief Act of 1877, even though that section was not expressly pleaded, were entitled to possession. The learned Vakil for the respondents, in answer to this contention, says that according to the terms of Section 9 of the Specific Relief Act, a person who is dispossessed without his consent of immovable property otherwise than in due course of law, is entitled to bring a suit under that section and that as there is no finding by the lower appellate Court as to the nature of the dispossession of the plaintiffs from the holding in dispute, the section and the rulings of this Court relied on by the appellants Vakil are not applicable to this case. Therefore, for the disposal of this appeal with reference to the argument based upon Section 9 of the Specific Relief Act a finding on the following issue is necessary. Were the plaintiffs dispossessed without their consent of the immovable property in suit otherwise than in due course of law by the defendants? The Court below will be at liberty to take such additional evidence as the parties may adduce. Ten days will be allowed for objections on return of the finding.