Rules and Practice of English Law

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INTRODUCTION

The
Specific Relief Act, 1877 is based on the rules and practice of English Law.
The sections of this Act, both as to substantive law and practice should be
interpreted in the light of the principles recognized by the English courts. If
there is an express divergence, the Act will be strictly add here to whatever
may be the English law on point. It follows that whatever the Act does not deal
specifically with any matter it is permissible to refer to English law. Such
cases have to be governed by the ordinary rules of justice, equity and good
conscience.

Section 9 of The Specific
Relief Act, 1877 deals with suit by person dispossessed of immoveable property. The provision of section 9 of The S.R.Act,1877clearly lays down that if a person who has
without his consent, been dispossessed of immovable property otherwise than in
due course of law, he is entitled to recover possession thereof by filling a
suit. A plea of title is no defence in the suit and any decision that may be
made in that suit will be subject to a title suit which may be eventually filed
and the person who has title or even a better right shall be competent to ask
for recovery of the property on establishment of such right.

There
was no scope of converting the suit under section 9 of The S. R. Act, 1877 in
to a miscellaneous proceeding and this section does not authorize the court to
order for demolishing or removing permanent structures standing in the suit
land while effecting restoration of possession. But decree for recovery of
possession after removal of structure is legal.

Article
3 of The Limitation Act, 1908 tells a suit under section 9 of The S. R. Act,
1877 has to be filed within six months from the date of dispossession.

SECTION 9 OF THE SPECIFIC RELIEF ACT,
1877

Sec.9: Suit by person dispossessed of
immovable property

If
any person is dispossessed without his consent of immoveable property otherwise
than in due course of law, he or any person claiming through him, by suit
recover possession thereof, notwithstanding any other title that may 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 and No suit under this section shall
be brought against the Government.

No
appeal shall lie from any order or decree passed in any suit instituted under
this section, nor shall any review of any such orders or decree be allowed.[1]

SCOPE AND OBJECT

The
object of section 9 of The Specific Relief Act, 1877 is to discourage citizens
from taking law in to their own hands, however good their title may be. Section
9 of the Act has been enacted to prevent persons from evicting men from
possession except through due process of law. It is a section the object of
which is to derive a person who wants to dispossess person and prevent him from
going with high a hand and dispossessing such person. This section is more then
a reproduction of the provisions of “Roman Law” by which the proctor was
entitled to restore possession to a person forcibly dispossessed. The question,
therefore, in a case under section 9 of The S.R.Act, 1877 is whether a person
while in physical possession of an immovable property has been dispossessed of
the same other wise than in due course of law and if so dispossessed he can be
restored to such possession under the decree of the court if the suit is
instituted within the period of stipulated in the section which is six months
from the date of dispossession[2].

Section
9 of the S.R.Act, 1877 provides a procedure who are dispossessed from immovable
property without consent or without lawful authority and except in due course
of law. Under this provision the court is not competent to decide the title of
the property. It only relates to possession of immovable property, if the
plaintiff had been illegally dispossessed then section 9 could be invoked. The
plaintiff should establish that he was actually in physical possession of the
immovable property from which he had been illegally dispossessed without his consent.
In an ordinary suit for possession if the plaintiff succeeds in establishing
his title as well as possession, he is bound to succeed. Even if he unable to
prove his title he can succeed on the basis of prior possession alone. In such
a suit, the title of both the parties can be brought in issue and can be
considered by the court. Title is not material in a suit falling under section
9 and any person who has been dispossessed, otherwise than in due course of law,
can without pleading or proving title, seek to be rein ducted in to possession
even though such a relief was sought against true owner of property himself.

Under
this section the suit is only maintainable by virtue of prior possession.
Therefore the plaint must aver only previous possession and dispossession by
defendant otherwise than in due course of law within six months of the suit,
and the decree must either dismiss the suit or order the plaintiffs to be put
in to possession by defendants. Such decree is based on previous possession and
dispossession merely and not on title. It follows that where the plaintiff
bases his claim to possession on title, the suit would not fall under this
section 9, but affords a conclusive defence in ordinary suit on title. However,
the court is not justified in refusing to give relief merely because the
plaintiff has mentioned his title apparently to explain his possession. The
suit does not be come a title suit because of this.

Possession
is good title against all but the true owner and entitles the possessor to
maintain an action in ejectment against all persons, except the true owner, who
might dispossess him. He can therefore avail himself of the remedy under
section 9 another trespasser.

In
a suit under section 9 of the Specific Relief Act, 1877 the plaintiff is to
prove……..that he (plaintiff) was in possession; that he (plaintiff) has been
disposed, i.e., deprived of actual physical possession of land. That the
dispossession took place without his consent that it was done otherwise than in
due course of law that the dispossession took place within six months before
institution of the suit under section 9[3].

WHO MAY SUE

Under
this section any person, who is dispossessed without his consent of immovable
property, otherwise than in due course of law or any person claiming through
him may by suit recover possession there of. The question as to how the
plaintiff came in to possession can not be gone in to this proceedings. Where a
mother and son were forcible ejected from room in their possession, and the
father was at the time living in a different house, the latter was not entitled
to institute a suit for restoration of possession, if the person actually
dispossessed were not willing to sue. If a person has entered in to possession
peacefully although he has no title to it and is dispossessed by another
person, he became entitled under section 9 of The S.R.Act, 1877 to sue such
other person for restoration of possession. The position is however different where
a person entered in to possession on behalf of another person, and when his
possession became wrongful the entitled to immediate possession dispossessed
him. Thus if a person who has been deputed to look after a piece of property
goes in to possession wrongfully and in subsequently dispossessed by the true
owner, he can not take the benefit of this section to dispossess the true
owner.

DISPOSSESSION WITHOUT CONSENT

Section
9 of the Specific Relief Act, 1877 provides a summary procedure for grant of
relief to persons dispossessed from immovable properties without their consent.
In such a case vital condition is that plaintiff must be dispossessed of
property without his consent, otherwise than in due course of law. Onus to
prove is on the plaintiff, it is to be noted that consent although obtained
without an element of force or duress, by obtained by the practicing deceit,
trick or misrepresentation deliberately was no consent in the eye of law of the
purpose of this section. This section comes in to operation only for a limited
purpose and can not be invoked unless plaintiffs are deprived of actual
possession; it has nothing to do with title.

In
other words, before a person can come under section 9 of the Act he has to show
that he has actual physical possession of the immovable property from which he
was dispossessed without his consent by the defendant within six months prior
to the institution of the suit. It follows that if the suit is to enforce a
right to possession where there has been no actual dispossession because the
plaintiff had not come in to possession the section does not apply. Similarly
where the defendant is not in possession rightly or wrongly on the date of the
suit; the suit by the plaintiff merely for injunction restraining the defendant
from entering in to possession and not for the recovery of possession would not
lie.

Other remedies not barred

Under
section 9 of The S.R.Act,1877 a person disposed without his consent of
immovable property may by suit recover possession there of within six months of
his dispossession. It is discretionary with him to file or file suit for the
recovery of possession under section 9 of the Act .When a person is
dispossessed against his consent, two remedies are open to him, these are……

He
may file suit for the recovery of property through summary procedure within
six(6) months under section 9 of The S.R.Act,1877

He
may file a suit for the recovery there of within twelve (12) years of his
dispossession.

The
remedy under section 9 is an additional remedy and does not prohibit suit for
possession on possessory title in the ordinary way in a proper case even though
the suit is brought beyond the six months. Section 9 is not intended to abridge
any rights possessed by a plaintiff; it rather gives him the right to have possession
restored without reference to the title on which he holds and that which the
dispossessors asserts. Every interference with immovable property does not
amount to dispossession of the person in possession. Acts of user which do not
interfere, and are consistent with purpose for which the owner intends to
devote the land, do not amount to discontinuance of possession by him.
Dispossession involves an animus possidendi with the intention of excluding the
owner as well as other people.

Therefore
the mare act of passing over the land of the plaintiff by other persons, does
not give him a cause of action under this section because such an act does not
amount to his dispossession. Thus interference with the right of lessee to
collect cow-dung and grass from specific plots though by itself may not amount
to dispossession from immovable property within the meaning of section 9,yet if
the lessee is actually thrown of the lands concerned by force, then it would
certainly amount to dispossession from the land in dispute. Section 9 of The S.
R. Act requires legal possession and the owner who re-enters without delay has
in law never lost possession. Unlawfully trespassing on property is a
continuing wrong and the cause of action arises each time the owner is resisted.

NATURE OF POSSESSION

In
a suit under section 9 an inquiry in to the nature of possession is often
necessary, and when necessary, the best way to ascertain the nature of
possession is to enquire in to the question of title. It is true that the trail
court is not concerned with the determination of title, but it is certainly
competent to go in to the question of title in order to ascertain the nature of
parties possession. The signature of a decree for possession obtained in a suit
filed under section 9is that it can not be said that the decree is no evidence
of title.

The
word “possession” includes actual possession or possession in fact, as well as
constrictive possession or possession in law. Therefore to bring an action
under this section the possession that is required is not actual physical
possession of the petitioner. It is enough if the plaintiff can show that
either he was in constrictive possession of the property or that had the power
of using the property, as and when, he deemed it necessary to do so. The
possession of a servant or, for the matter of that of deputee or appointee for
the benefit and on behalf of the master or the person deputing and appointing,
is really in possession of the latter. Where the plaintiff appointed a pujari of
a thakur bari, defrayed the expense of worship, repaired the building and had
the key of the door of the thakurgarh with him. It was held the possession of
the plaintiff was such physical possession s to attract the operation of
section 9, notwithstanding that the thakur bari as a residence of deity, was
open to the public.

Where
a person purchases land, from another but is resist on the first attempt to
obtain possession, there is no possession and dispossession. Merely leaving a
plough and manure on the land would not constitute enduring possession which
alone deserves protection under the section. The possession required under the
section must beat least excusable possession, where the purchaser of occupancy fields
remained in undisturbed possession for four years and was then dispossessed. It
was held that the possession in excusable one and a suit lies under section 9.

Trespasser

A
decree under section 9 can be passed when it is prove that the plaintiff was
dispossessed from the property in dispute by the defendant otherwise than in
due course of law, within six months of the institution of the suit and that in
such a case the court has no jurisdiction to go in to the question of the title
of   parties and can only determine whether
defendant trespassed in the property in dispute within six months of the filling of
the suit. This section says nothing about the nature of the possession enjoyed
by the person dispossessed, although it may well be that a suit under section
can be maintained by a person who is manifestly a trespasser and whose
possession is of a very short duration. Save in those cases where the nature of
the possession of the plaintiff is clearly is such as to result in a proceeding
under section 9defeating the purpose of that section, the title of the
plaintiff is no more to be enquired into than that of the defendant.

A
trespasser can bring a suit for summary remedy under section 9 in a civil
court, because even mere possession is converted by prescription in to a right
of ownership, it is in itself a right which protected and remedies for the
person dispossessed are provided under section 9 and 42 of the Specific Relief
Act, 1877. Possession of a tenant who has ceased to be a tenant is protected by
statute; he is not a trespasser. If the land lord deprived him from possession
otherwise than in due course of law, he may sue the land lord for recovery of
possession under sec. 9.But where a tenant voluntarily vacated premises; his
entry without permission of land lord would be illegal and can be evicted under
this section.

Where
a shop was demolished and re-constructed, before competition of re construction,
tenant reoccupied such shop without consent or permission of the land lord.
Land lord ‘s suit to recover possession was decreed and it was held that tenant’s
plea that land lord had given him undertaking to re let  him the shop would be of no avail as such
undertaking if any, had to be fulfilled after re-construction  was complete. Similarly while tenant could
not force his own reinstatement in a constructed property without consent of
owner landlords on the basis of allege agreement of subletting to another
person.

A
person can not be denied to have recourse to the provisions of Sec. 9 merely because he has permitted
another person to temporarily use the premises for a specific or limited
purpose. I such cases he still continues to be in possession of the same,
though the actual and physical possession may be with another person.

Where
a license has given possession to a third person, and the latter is
dispossessed, the licensee may move the court under this section for
restoration of possession.

CONSTRUCTIVE POSSESSION

Constructive
goes with title. There is no reason to give such a restricted interpretation to
the section as to confine its operation only to cases in which the plaintiffs
have been deprived of only actual physical possession. So long a person has the
power to bring the property into use whenever he likes he will be deemed to be
in possession for the purpose of this section. Possession which is constructive
in nature can also be established in appropriate circumstances in an action
under this section. There fore a mortgagee in possession through his tenants is
entitled to invoke the aid of section 9 on his tenants being ejected from
possession from others. Even where the title of the plaintiff is defective, he
can sue under section 9.Thus a usufructuary mortgagee holding under an invalid
mortgage deed can not sue for possession on title but he can do so under
section 9 of The S. R. Act, 1877.

Possession
of the plaintiff as a monthly tenant was the constructive possession of her
landlord. If such monthly tenant allows some one as sub-lessee to enter into
possession of the leased shop by infracting the terms of the lease, and without
the consent of the landlord, the possession of such sub-lessee can not be
termed to be the constructive possession of the tenant for purpose of a suit
under section 9 of The Specific Relief Act.[4]

Licensee

A
licensee of land if dispossessed by a trespasser can sue under section 9.Where
the plaintiff had possession over a piece of land, on which they cattle troughs
and platform. The defendant unlawfully removed cattle troughs and platform and
took possession of the land by building over it. It was held that though the
plaintiff only a licensee had sufficient possessory to maintain action for
possession of land and removal of buildings.

Where
A was entrusted by B to look after a certain plot of land
during his absence from the country. B’s
occupation is not such possession as to entitle him to a remedy under section 9
of The S. R. Act, against A for and
on whose behalf he had been holding the plot.

DUE COURSE OF LAW-MEANING

Words
“otherwise than in due course of law” in section 9 of The Specific Relief Act,
1877 are not synonymous with the word “illegally”.

The
phrase due course of law means the regular, normal process and effect of the
law operating on a matter which has been laid before a court for adjudication.
It do not mean that the party against whom a suit or recovery of possession is
field must, in due course of law, be in possession as a result of the
proceedings between the same parties, that is the plaintiff and the defendant
or their agents or with whom they have priority. In order to bar a suit under
section 9 of The Specific Relief Act, 1877, it is not necessary that the
possession in due course of law must be possession as a result of the
proceedings between the parties themselves.[5]

There
may be and can be cases where a person is dispossessed, otherwise than in due
course of law, as when the dispossession is through fraud or a trick. In such a
case the dispossession would not be forcible. Where an objection petition was
filed by a stranger to execution of decree on the ground that he in fact was
the owner o the property in question and decree in process of execution had
been rendered without impleading him as a party to suit. It was held that the
decision rendered or passed by court under section 9, being tentative in nature
was designed to restore possession of ousted party quickly and without
determining title of parties.

Due course of law means normal
effect of law, where a man has been dispossessed through court having
jurisdiction even though process adopted is objectionable.

Dispossession
by legal process which ought not to have been applied is not dispossession in
due course of law within section 9 of The S. R. Act, 1877. A certificate
officer has no jurisdiction to given kash possession of premises sold in
auction but occupied by a tenant. Therefore, if dispossession of a tenant is
effected by that means, it would not be a dispossession in due course of law,
and the possession of the tenant could be restored under section 9. Similarly
the possession of the property obtain through the medium of an officer of the
court not authorized to act in that direction will be a dispossession caused
without his consent of the person in control of the property and otherwise than
in due course of law.

LANDLORD AND TENANT

By
settling the land with tenants a landlord is not deprived of possession but he
only alters the mode in which he holds possession. Therefore where his tenant
in dispossessed, a landlord can bring a suit under this section. Thus a suit to
recover possession of the property when the property itself was under the
cultivation of a bargadar is clearly maintainable by his principal in view of
the fact that a dispossession of such a bargadar is the dispossession of the
landlord himself. If a tenant is, in possession of the property and being
dispossessed there from does not care to bring a suit for possession of the
property, the landlord cannot be shut off from bringing a suit against the
trespasser, If the tenant has a mind to remain in possession of the property on
behalf of the landlord, the landlord will on recovering possession 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.

How
Suit May Be Brought

Where
a tenant in exclusive possession is dispossessed, the proper remedy for the
tenant is to sue for possession and for the landlord, if he so desires to sue
immediately on possessory right, to sue in the name of the tenant, but if the tenant
refuses to join or there is injury to reversion, the landlord can sue in his
own name. If a tenant has a mind to secure possession of the property and joins
the landlord as a co-plaintiff or files a suit independently of  the landlord, he would certainly be entitled,
except in the case of termination of his tenancy before the decree, to actual
possession while the decree in favour of the landlord may be that of formal
possession, But in cases where the tenant has no intention to get back the
possession of the property or his tenancy itself stands terminated, the
landlord cannot be kept back from securing the actual possession of the
property from the trespasser.

Landlord
Dispossessing Tenant

Where
the respondents entered into possession as a lessee but were dispossessed. For
invoking jurisdiction under this section they had to show that their first
entry on the immovable property was legal. As their possession is that of
lessees, the leasehold rights were continuing on the day of dispossession,
either under a contractual tenancy or statutory tenancy. Even after the tenancy
has been validly terminated, and they are dispossessed without their consent
and in an unlawful manner, while they were holding over, they have got a right
to file a suit under section 9 for restoration of possession to them, Where a
defendant admitted plaintiff as a tenant in his written statement that
plaintiff had voluntarily handed over possession of shop to him which burden
defendant failed to discharge. Plaintiff’s deposition on oath that he was
forcibly dispossessed would stand proved in absence of evidence to the contrary
by the defendant.

Where
as a result of collusion between the agent of the tenant and the landlord. the
landlord gets possession of the leased property, it is the tenant who is
dispossessed of the property without his consent and otherwise than in due
course  of law. In such a case the tenant
is entitled to bring a suit under section 9 in his won name. And the mere fact
that the tenant has a remedy by way of a suit for compensation against his
agent does not mean that he is incompetent to bring a suit under section 9, if
he is otherwise entitled to do so. Where the landlord got the tenant evicted by
collusion with the Municipal Engineer who got the premises vacated on the plea
that the premises where in a dangerous condition and were to be demolished. But
only first floor was demolished and the possession of the ground floor was
given to the landlord. It was held that although the power to get premises
vacated was available to the Municipality but looking to the circumstances of
the case the exercise of this power was a fraud on the statute. Any action
taken mala fide under the cloak of law cannot be treated as in due course of
law in order to debar an aggrieved person from seeking relief under section 9, and
the tenant was entitled to recover possession under that provision of law. But
where the respondent has been in illegal occupation of petitioner’s legally
allotted house since 1960. without any payment of rent to him, he cannot be
allowed to take shelter in legal technicalities to defeat the intent and
purpose of the law, and he is expected to come with clean hands to expect
equitable relief from Courts. 

CO-OWNERS

If
a co-sharer has been in exclusive possession of a certain portion of the joint
property for a long period, he cannot be dispossessed there from by another
co-sharer except by bringing a suit for partition of the joint property. Even
in case of joint khata of agricultural land, where one co-sharer cultivates one
field and other co-sharers cultivate other fields, no co-sharer can dispossess
the other against his will, from the field of which he had the possession. A
co-owner in exclusive possession, if dispossessed by other co-owners within 6
months, can sue under the section. It may well be that a joint owner
of property is still on the date of suit under section 9, entitled to the
property and would be given possession in a suit properly instituted for that
purpose. But nevertheless it is open to one co-owner of property to oust the
others and to obtain exclusive possession for himself.

The
title of others may not be extinguished when this is done, but if that ouster
took place more than 6 months before the institution of the suit under section
9, then for the purpose of section 9, that ouster would hold good. Where in a
suit under this section exclusive possession is decreed in favour of a
co-sharer and subsequently a suit is filed for declaration of title and for
recovery of possession by other co-sharers, the declaration of title may e given
but no decree for joint possession can be given and in the absence of relief of
partition, the plaintiff may be relegated to separate action.

JOINT POSSESSION

A
person in joint possession of immovable property is as much in possession of
that property as a person who is in exclusive possession and if the person who
was in joint possession is dispossessed, he can sue to be restored to that
possession which he enjoyed before he was dispossessed. In case the defendant
shows equal right with the plaintiff, he will be entitled to joint possession;
but on formers showing better title, the latter would have no right to
possession.

MASTER AND SERVANT

A
court has no jurisdiction to entertain a suit under section 9 by a servant
against his master, because the person in actual occupation, who is a servant,
depute or appointee of another, holds the property for such other person. His
occupation is the occupation of the master, or the person deputing or
appointing him. Section 9 of the Specific Relief Act, provides a summary
procedure for grant of relief to persons dispossessed from immovable properties
without their consent. The purpose of this section is to discourage forcible
dispossession. Where there has been no forcible dispossession, this section
would not apply. Therefore where the owner lets a person take possession of a
shop as his servant, but subsequently the servant sets himself up as owner, the
landlord cannot sue the servant under this section for possession as his suit
is based on title and not on forcible loss of possession.  A suit under section 9 it is open to the
defendant to plead that the suit property was dedicated to the public for a
religious or charitable purpose in order to show that the plaintiff’s
possession was merely that of a servant or manager liable to be dismissed.

IMMOVABLE PROPERTY

Generally
the definition of immovable property given in General Clauses Act, 1897 section
3 (25) should be applied to the expression used in section 9.According to
section 3(25) of the General Clauses Act, 1897.

Immovable
property shall include land, benefits to arise out of land, and things attached
to the earth, or permanently fastened to anything attached to the earth.[6]

Where
the property is only an incorporeal right which is an immovable property under
section 3 (25), General Clauses Act, 1897 this section would not apply. Thus
though a right of way and a hereditary priesthood is regarded as immovable
property, yet they are not immovable property for the purpose of this section.
Where the plaintiff’s right to collect cow-dung and grass from the land leased
to him is only interfered with there is no dispossession. But if he has been
forcibly dispossessed from the land itself he can maintain a suit under section
9 of The S. R. Act.

Rent

The
rent of a property, already accrued would not be immovable property, for it can
not be said to arise out of land. But future rents and profits are benefits to
arise out of immovable property and therefore, are immovable property. Future
rent payable by a lessee to whom the property has already been leased, however,
has two aspects and it is only in one of its aspects that it is to be regarded
as immovable property. In on aspects, it is a benefit which arises out of the
use of land. In a lease the lessor transfers and interest in immovable property
to the lessee and the rent is the consideration for the transfer. A right to
receive consideration for a lessee is not immovable property any more than a
right to receive consideration in the case of a mortgage or sale of immovable
property is immovable property. Therefore this section would not apply to it.[7]

Fishery

A
several fishery is an incorporeal here determent and would normally be
considered real or immovable property.

Fishing Rights

The
right to catch fish for a specific period in a specific part of the lake is
immovable property. But is the whole of section 9 is repugnant to the idea that
immovable property in that section includes and incorporeal right, the
immovable property in that section includes an incorporeal right. The immovable
property intended to be dealt with is something of which actual physical
possession can be given and taken. Therefore such a right cannot be enforced
under this section.

Right to Collect Tolls

A
right to collect tolls in a public ferry is not immovable property and a lessee
has no right to recover possession under section 9 of the S. R Act..

Trees

The
term trees are included in the term immovable property. But standing timber
which has to be cut down and removed is movable property.

Mortgage

A
mortgage with possession is an interest in land because the mortgage has a
right to possession and enjoys the benefits arising out of the land until he is
redeemed. In such a case, the mortgagee rights therein are immovable property.
But a simple mortgage bond is movable property for the purpose of procedure for
attachment of the debt.

Buildings

A
building is an immovable property. Therefore a house though a kutcha one would
be immovable property as its walls though katcha would be permanently fixed to
the earth.

SUIT BASED ON TITLE

A
distinction has to be drawn between a suit based upon possessory title and a
suit under section 9. In the former case the plaintiff would be entitled to a
decree only where the plaintiff’s possession was sufficient proof of his title
while in the latter case the Court has merely to see whether the plaintiff was
in possession six months prior to the date of the suit. Therefore where the
plaintiff does not allege possession but basis his suit on title he can not
given a decree for possession under section 9 even if he has been dispossessed
within six months of the date of the suit. Where two separate suits are
brought, one based on possession under this section, and another on title, they
cannot be consolidated and tried together. The suits being of different nature
altogether, they must be heard separately.

Possessory suit based on tile

A
decree can be passed on basis of possessory title in a suit for possession when
the plaintiff proves that he was in peaceful possession when he as dispossessed
by the defendant and the defendant fails to prove title in himself, even though
the plaintiff has not framed his suit as one under section 9 and did not sue
the defendant within six months of his dispossession. When the plaintiff wanted
possessions under this section and not under the ordinary law on the basis of
claims based on the title, the relief may be granted. The mere fact that the
plaintiff and referred to his claims of ownership in the plant, would not make
any difference. That would be a matter of history not material or relevant for
the purpose of the suit under section 9 of The S.R. Act.

Suit after six months

A
party which fails to recover possession under section 9 would still have an
alternate remedy of a regular suit for possession on basis of title. Where a
suit for possession is brought more than 6 months after the date of
dispossession, the plaintiff is entitled to succeed only if he proves his case
to recover possession on the basis of some right or title.

Suit on title is not barred by this
section

No
one, though entitled to sue under section 9, is bound to do so, and one can
always bring a regular suit founded on title. Therefore if a person in
possession is dispossessed, he can succeed on the strength of his title if he
does not sue under section 9 for possession. Similarly a person who has been
ousted by a trespasser from the possession of immovable property, to which he
had merely a possessory title, is not debarred from bringing a suit in
ejectment on the basis of his possessory title even after the lapse of six
months form the date of dispossession. Where the suit is based on title and
relief is not claimed under this section, the Court has no discretion in the
matter of granting or refusing to grant relief.

Stay of suit under this section till
decision of title suit

It
is difficult to lay down any hard and fast rule with regard to the stay of a
suit under section 9 where the question of title is raised in another suit,
which is pending at the same time. Where the filing of such a suit is found to
be for the purpose of protracting proceedings and harassing the party which has
been dispossessed, naturally the Court will not use its discretion under
section 151, C.P.C to stay the suit, for the simple reason, that power is to be
exercised in the interest of justice. But it cannot be accepted as a firm rule
that in no case an inquiry on the point of possession in a suit under section 9
is to be suspended until the title suit is decided. It is true that a decision
under section 9 is subject to the decision of the title suit which may
eventually be filed. But considering that such a decision is subject to the
decision of the title suit, the question at once arises whether in a case in
which a title suit has been filed and is pending in the same Court and is at
the same stage as the suit under section 9, the Court is not empowered in the
interest of justice to stay that suit for possession. There is no principle
upon which such a rule can be laid down which, in certain cases, may result in
hardship.

Remedy of person against whom order
under this section.

Title
is no defence in a suit under section 9 but affords a conclusive defence in
other suits. Therefore where petitioner had got a decree in his favour under
section 9 respondent could only defend his title but not possession.
Restoration of possession in a suits under section 9 is always subject to a
regular suit and the person who has regular title or even the better title con
not therefore be prejudiced in any way be a decree in such a suit. Where an
order is made under section 9 against the owner or the property, this order and
decree cannot be assailed by any appeal but can be challenged by a suit for
possession based on title.

RELIEF WHICH MAY BE GRANTED

Generally
the Court can grant relief only by way of restoration of possession. Section 9
does not empower the Court to direct the defendant to remove structures erected
by him or to permit the plaintiff to pull them down. Therefore and order under
section 9 which allows the plaintiff to remove the house built on land by the
defendant is beyond the jurisdiction of a Court under the section inasmuch as
under that section a court cannot  do
more than make an order with respect to the possession of land. Decree for
recovery of possession by demolishing structures thereon is illegal but decree
for recovery of possession after removal of structures is legal.[8]

If
a person is dispossessed from his land by another who subsequently makes a
construction covering the entire land in that case if it is found that the
plaintiff was dispossessed and he filled the suit within 6 months of his
dispossession then a decree for recovering of possession in his favour can be
given either with the structures constructed by the defendant there in or
without the structures by removing the same after demolition.

Section
9 of The S. R. Act speaks of dispossession from immovable property and recovery
of possession there in. Vacant land as well as land with structures there in is
immovable property. If the plaintiff is given recovery of possession with the
structure made by the defendant then it will be doing injustice to the
defendant as plaintiff has no right to the structures constructed by the defendant.
So the order for recovery of possession of the plaintiff and directing the
defendant to remove the structures can not be said to be illegal with the
maintaining of this section 9 of The S. R. Act.

BAR TO CONVERTING THE SUIT

The
suit framed under section 9 of The S. R. Act is title suit, though summary in
nature. But an application under order XXI, rule 100 of The C.P.C, 1908 takes
the forms of miscellaneous proceeding. There was no scope of converting the
suit under section 9 of the act in to a miscellaneous proceeding under order
XXI, rule 100 the code does not at all arise.[9]

The
last part of section 9 expressly prohibits and appeal from any order or decree
passed in any suit instituted under this section. Order on such incompetent appeal
would be without jurisdiction and thus not binding. An order dismissing a suit
for restoration of possession for non-payment or court-fee which trial Court
required plaintiff to pay was not appeasable. However, any order passed under
Order- XL, Rule- I, Civil Procedure Code, 1908, or any other provision of law
would not be termed as an order passed under section 9, and appeal against such
order would be competent. Where an incompetent appeal was filed under this
section and Additional District Judge not only entertained the incompetent
appeal but also heard it on merits and then dismissed it, Notice was issued by
High Court to the Add. District Judge to show cause as to why he may not be
made personally liable to pay all the costs which may have been incurred by the
parties in moving his Court and contesting an untenable appeal wherein he had
called upon the opposite-party to enter appearance.

LIMITATION

To
maintain a suit under this section the plaintiff must have had possession and
subsequently he must have been dispossessed and the suit must have been
instituted within 6 months of dispossession, otherwise it will be barred
according to Article 3 of The Limitation Act. However, a suit could be filed
beyond six months of dispossession by the one who was dispossessed,
irrespective of title, but such remedy under section 8 would be against
trespassers alone.

CONCLUSION

Section
9 of The Specific Relief Act, 1877 is a summary procedure, under this section
the court will determine that the plaintiff was in possession, he has been
dispossessed by the defendant from the immovable property, such dispossession
took place without the consent of plaintiff and otherwise than in due course of
law and such suit has to be filed within six (6) months from the date of
dispossession. Neither any appeal nor review shall lie from any order or decree
passed in such suit. Only revision is applicable in such suit. No suit shall be
brought against the Government. In a suit under section 9 question of title is
irrelevant. This section is concerned with physical possession as well as
constructive possession but not with title. So, this section is a safe guard to
a person who is in actual possession.

BIBLIOGRAPHY

BLD’s
10 Years Digest(1993-2002)First Edition, Bangladesh Bar council,2004

Civil
Reference(1996-2000), First Edition,BLC,2001

Five
Years MLR Civil Reference(1996-2000),First Edition, The Main Stream Law
Reports,Dhaka,2001

Mahmood,
Shaukat, The Specific Relief Act(I of
1877)
, Seventh Edition, Legal Research Centre, Lahore, 1997

Second
Five Years MLR civil Reference(2001-2005), The Main Stream Law
Reports,Dhaka,2006

The
General Clauses Act(X of 1897), Third Edition, DLR,2007

The
Limitation Act(IX of  1908), Second
Edition, DLR,1986

The
Specific Relief Act (I of 1877), Fourth Edition, DLR,2004

20
Years Civil Digest(1985-2004),First Edition, DLR,1990

36
Years Civil Digest(1949-1984),Part III, First Edition, DLR, 1986



[1] The Specific Relief Act,1877[1 of 1877]

[2]

[3]

[4]

[5]

[6] The General Clauses Act,1897

[7] Shaukat Mahmood,p28

[8]

[9] Delwar Hossain KhanVs. Amzad Hossain and Others 19
BLD 523