RAMCHANDRA Vs. SAMBASHIV

JUDGEMENT

(1.) THE question referred to this Court under Section 113, Civil P.C., is which of two officially published judgments of this Court, each the judgment of a single Judge is correct. This is one of the not inconsiderable number of cases in which a judgment of a single Judge of this Court has been officially published, presumably through inadvertence, though it breaks the rule of practice that a single Judge is bound to follow all officially published rulings till they have been Overruled by a Bench. The inconvenience caused by the mistake is apparent. The learned Subordinate Judge who made the reference states the opinion that the two conflicting judgments are "of equally binding authority." That would mean that neither is of any authority at all, its effect being cancelled by the other, and indeed it is hard to say that that is not the actual position. The only means of escape from such an impossible position is to refer the question to a Bench, which will overrule one decision or the other.

(2.) THE facts of the present case, including those not yet proved but assumed to be true for the purposes of the decision, are these. The original plaintiff Balaji Rangari (who has since died and been succeeded as plaintiff by his son Ramchandra was the owner of a house, used as a shop, and of a plot of land adjoining it in the town of Chanda, which for some years he has been letting out on oral leases from year to year to one Uttamchand Marwari. The term of the last lease given before the present suit was instituted was from 29th October 1924 to 18th October 1925. On 26th February 1925 the defendant Sambashiv Komti dispossessed the tenant Uttamchand of the open plot, but not of the house, and on 3rd August of the same year the landlord Balaji filed the present suit, claiming to be restored to possession under Section 9, Specific Relief Act.

(3.) BUT for the decisions that have been mentioned, there would seem to me to be no question to decide in the case. We have to do nothing more than apply the plain words of Section 9, Specific Relief Act. That section lays down that any person dispossessed of immovable property may recover possession thereof. A right to receive rent is immovable property, and a person dispossessed of that right can recover possession of that right, but he cannot recover possession of the land, of which he was not in possession and has not been dispossessed. It was Uttamchand who was dispossessed of the land here not the plaintiff, and Uttamchand alone could regain possession of it. The plaintiff was apparently not dispossessed even of his right to recover the rent from Uttamchand, anyhow not by the defendant, and that is the only immovable property of which he can claim possession.