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TMI Blog2010 (2) TMI 1295X X X X Extracts X X X X X X X X Extracts X X X X ..... ant, since deceased, (hereinafter referred to as `defendant No. 4'). The plaintiff averred in the plaint that she purchased the entire house No. 97 from defendant No. 4 by registered sale deed on October 1, 1981. At the time of purchase, part of house No. 97 was in possession of Pandurang Vichare who vacated that portion and she came into possession of entire house. Later on, she let out southern side one room along with hall adjacent to Padavi and northern side room of hall (for short `suit property') to one P.V. Warik. On October 1, 1988, the contesting defendants forcibly dispossessed the tenant - P.V. Warik, threw away his articles and took possession of the suit property. The plaintiff, thus, prayed for recovery of possession of the suit property of which her tenant was forcibly dispossessed. The contesting defendants filed written statement and traversed plaintiff's claim by stating that suit property was joint family property and defendant No. 4 had no authority to sell the said house to the plaintiff. The contesting defendants, thus, claimed that they were co-owners and in possession of the entire house No. 97. Defendant No. 4 set up the plea that no considerati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any suit instituted under this section, nor shall any review of any such order or decree be allowed. (4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof. 6. Section 6 corresponds to Section 9 of the repealed Specific Relief Act, 1877 (for short, ₹ 1877 Act'). The question whether a landlord can sue a trespasser for immediate possession where his tenant has been dispossessed has come up for consideration before various High Courts with reference to Section 9 of the 1877 Act. Section 9 of the 1877 Act is in these terms: 9. 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 suit, recover possession thereof, notwithstanding any other title that may be set up in such suit. Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof. No suit under this section shall be brought against the Central Government or any State Government. No appeal shall lie from any order or decree passed in any suit instituted un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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.... 12. The Division Bench of Bombay High Court in Ratanlal Ghelabhai v. Amarsing Rupsing and Ors. AIR 1929 Bom 467 stated the legal position with reference to Section 9 of 1877 Act thus: There is nothing in this section to show that possession is confined to actual physical possession. In the case of a landlord and tenant the landlord is in possession through his tenant and, as pointed out in Nirjivandas Madhavdas v. Mahomed Ali Khan Ibrahim Khan [1880] 5 Bom. 208, the proper remedy where exclusive occupation of immovable property is given to a tenant is for the tenant to file a suit for possession but the landlord, if he desires to sue immediately on the possessory right, can sue in the name of the tenant and further, for an injury to the reversion, the landlord can sue in his o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court relied upon the decision of Patna High Court in Sailesh Kumar AIR 1953 Pepsu 188 and did not follow decision of Madras High Court in Veeraswami Mudali . The Division Bench of Pepsu High Court held that possession of the tenant can be considered to be the possession of the landlord for the purposes of Section 9. The Division Bench expressed its opinion in the following words: ...The word used in Section 9 is `dispossessed'. There is nothing in this section to show that the possession is confined only to actual physical possession. I am, therefore, of the opinion that a suit is competent by the landlord, even if he is not in actual physical possession of the land but in its possession through a tenant at the time of illegal dispossession. This conclusion is further strengthened by the words he or any person claiming through him may, by suit, recover possession thereof used in the section. The language of this section, therefore, clearly indicates that besides the person dispossessed, any person claiming through him can seek his remedy provided in this section for the recovery of possession. It necessarily follows that the person seeking relief under Section 9 need n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... session of the property on behalf of the landlord, the landlord will put him in actual possession of the property. If, however, the tenant has no mind to stick to the land, the landlord is entitled to get actual possession of the property from the trespasser. Of course it would be proper to make the tenant also a party to the suit. He may either join as a co-plaintiff or in case he refuses to join as a co-plaintiff he may be made a defendant so that he might have his say in the matter. In this case the tenant has also been made a defendant. I may say here that in this particular case according to the finding of the learned Civil Judge with which I have no reason to disagree, the tenant had put Raghuvar Dayal defendant in possession of the property in collusion with him. This Reghuvardayal filed a suit for ejectment and the tenant entered into a compromise and suffered a compromise decree for ejectment being passed against him. In execution of that decree Shivchand tenant was dispossessed. Under these circumstances to my mind the plaintiff was entitled to actual possession of the property in dispute and the defendant Reghuvardayal who came into possession of that property certain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to have possession in law is sometimes said to have constructive possession. 18. Pollock and Wright in their classic work, `An Essay on Possession in the Common Law' (1888 Edition, page 27) explained the nature of possession, inter alia, as follows: Right to possess or to have legal possession. This includes the right to physical possession. It can exist apart from both physical and legal possession; it is, for example, that which remains to a rightful possessor immediately after he has been wrongfully dispossessed. It is a normal incident of ownership or property, and the name of `property' is often given to it.... Right to possess, when separated from possession, is often called `constructive possession.' The correct use of the term would seem to be coextensive with and limited to those cases where a person entitled to possess is (or was) allowed the same remedies as if he had really been in possession.... 19. A landlord by letting out the property to a tenant does not lose possession as he continues to retain the legal possession although actual possession, user and control of that property is with the tenant. By retaining legal possession or in any cas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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