RATANLAL GHELABHAI Vs. AMARSING RUPSING

JUDGEMENT

(1.) The plaintiff-petitioner alleges that he and his predecessors-in-title were the owners of survey No. 102 in the village of Nandorda, West Khandesh District;, that he leased the property to defendant No. 2 and that defendant No. 2 was forcibly and unlawfully dispossessed by defendant No. 1 and that he only came to know of this on July 7, 1926. He then called upon defendant No. 2 to join him in filing a suit for possession under Section 9 of the Specific Relief Act but defendant No. 2 refused to join. The plaintiff thereupon filed suit No. 1609 of 1927 in the Court of the Second Class Subordinate Judge of Nandurbar under,'s g of the Act and made defendants Nos. 1 and 2 defend- ants to that suit. The learned Subordinate Judge framed an issue in these terms:-"Is the plaintiff entitled to bring this suit?" He came to the conclusion that the question for determination was whether a landlord can sue for possession under Section 9 of the Specific Relief Act when, as a matter of fact, the property is let to a tenant who was and is entitled to present possession Shortly put, therefore, the question which he tried was whether the landlord could sue under Section 9 when he had a tenant in possession who was dispossessed.

(2.) The learned Subordinate Judge came to the conclusion that the plaintiff could not bring such a suit and dismissed it. Against that order the plaintiff has filed the present civil revision application.

(3.) Clearly, if the plaintiff is entitled to file such a suit under Section 9 the finding of the learned Subordinate Judge to the contrary is a matter which can be entertained in revision for the effect of the finding is to deprive the plaintiff of his right to redress under s. b and thelearned Subordinate Judge has failed to exercise a jurisdiction which he ought to have exercised.