REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1930 OF 2010
[Arising out of SLP [C] No. 10418 of 2008]
Sadashiv Shyama Sawant [D] …. Appellants
Through L.Rs., & Ors.
Vs.
Anita Anant Sawant ….Respondent
JUDGEMENT
R.M. LODHA,J.
Leave granted.
2. The main question for consideration in this appeal by
special leave is: where a tenant in exclusive possession is
dispossessed forcibly by a person other than landlord, can landlord
maintain suit under Section 6 of Specific Relief Act, 1963 againstsuch person for immediate possession. The incidental question is,
whether tenant is a necessary party in such suit.
3. Smt. Anita Anant Sawant – the sole respondent filed a
suit for possession under Section 6 of the Specific Relief Act, 1963
(for short `the Act’) in respect of portion of property being Gram
Panchayat House No. 97 situated on land bearing Gat No. 1, Hissa
No. 61, Village Ambet, Taluka Mahasala, District Raigad, against the
appellants and their predecessors-in-title (hereinafter referred to as
`the contesting defendants’) and one Smt. Nanibai Shankar Sawant,
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
2property. 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 consideration was paid to her for the sale of
house No. 97 and that sale deed was obtained by fraud. It transpires,
on the basis of the pleadings of the parties, the trial court framed as
many as six issues, including that of title to property although such
issue was unnecessary. The trial court, after recording the evidence
and hearing the parties, held that plaintiff was able to prove her
dispossession on October 1, 1988 by the contesting defendants from
the suit property and that she could maintain the suit under Section 6
of the Act against the contesting defendants as she was in
possession through a tenant over the suit property. The trial court,
accordingly, vide its judgment and decree dated July 31, 2001,
directed the contesting defendants to handover the possession of the
suit property to the plaintiff.
34. The contesting defendants challenged the judgment and
decree of the trial court by filing revision application before the High
Court of Judicature at Bombay. It may be noticed here that
defendant no. 4 had already died during the pendency of suit and her
legal representatives were brought on record, but later on they were
deleted from array of parties in the revision application. Inter alia,
the contention raised before the High Court was that if the tenant of
the plaintiff was forcibly dispossessed, the suit under Section 6 of the
Act could be filed by the tenant and not by the landlady. The High
Court did not accept the contention of the contesting defendants and
held that in view of the language of Section 6 of the Act, either the
tenant who was actually dispossessed or the plaintiff being landlady
could file the suit. The High Court, thus, by its judgment dated March
28, 2008 dismissed the revision application. It is from this judgment
that the present appeal by special leave arises.
5. Section 6 of the Act reads as under:-
“6.- Suit by person dispossessed of immovable
property.- (1) If any person is dispossessed without
4his 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.
(2) No suit under this section shall be brought –
(a) after the expiry of six months from the date
of dispossession; or
(b) against the Government.
(3) No appeal shall lie from any order or decree
passed in 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,
5recover 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 under this section, nor shall any
review of any such order or decree be allowed. “
7. In Veeraswami Mudali v. P.R. Venkatachala Mudali and
others1
, it was held by the Madras High Court that the trespasser
could not interfere with landlord’s right to receive rent and a decree to
be put into possession of the rents, but so long as landlord did not
himself possess the right to enjoy physical possession, he could not
eject the trespasser under Section 9. While holding so, the Single
Judge of Madras High Court relied upon previous decisions of that
Court in Ramanadhan Chetti v. Pulikutti Servai2 and Mohideen
Ravuther v. Jayarama Aiyar
3
.
8. The Division Bench of Additional Judicial Commissioners,
Nagpur, in Ramchandra v. Sambashiv
4
, on a question referred to it
1
AIR 1926 Madras 18
2
(1898) 21 Madras 288
3
(1921) 44 Madras 937
4
AIR 1928 Nagpur 313
6under Section 113 of Code of Civil Procedure, held that a landlord
cannot sue under Section 9 to recover possession of the land
because he was not in possession of it and was not dispossessed of
it.
9. In (Kanneganti) Ramamanemma v. (Kanneganti)
Basavayya
5
, a Single Judge of the Madras High Court held that a
suit by landlord for possession under Section 9 in which the tenant in
possession had not joined, is not maintainable.
10. Contrary to the aforesaid view of the Madras High Court
and Nagpur Judicial Commissioner, the High Courts of Calcutta,
Bombay, Patna, Pepsu and Rajasthan have taken the view that a
landlord can maintain a suit under Section 9 of the 1877 Act to
recover possession where his tenant in exclusive possession has
been dispossessed forcibly by the act of a third party.
11. In Nobin Das v. Kailash Chandra Dey6
, the Division
Bench of Calcutta High Court held:
5
AIR 1934 Madras 558
6
(1910) Vol. VII Indian Cases 924
7“….In the case before us, the plaintiff was originally in
actual possession of the land. He was at that stage
entitled to use the property in any way he chose. He
settled the land with tenants. The result was, not that he
was deprived of his possession, but that the mode in which
he held possession of the property was altered. His
tenants came into physical possession of the land and he
held possession thereafter by receipt of rent from them.
When, therefore, his tenants were forcibly ejected from the
land by the defendants, it may reasonably be held that he
also was dispossessed. The case before us is further
strengthened 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 others7
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 own name. The injury in the
present instance consists in a denial of the plaintiff’s title to
the land for defendant 1 has taken possession of it
claiming it to be his. I think, therefore, that there is an
7
AIR 1929 Bombay 467
8injury to the reversion in respect of which the plaintiff can
sue in his own name….”.
13. In Sailesh Kumar and another v. Rama Devi8
, the Division
Bench of Patna High Court answered the question, whether a
landlord can maintain a suit under Section 9 of the 1877 Act against
trespasser for immediate possession when, at the date of
dispossession, the house was in occupation of a tenant entitled to its
exclusive use, in affirmative. The Division Bench considered the
matter thus:-
“(6). Mr. P.B. Ganguly, appearing in support of this
application, contended that the plaintiff’s suit under
S.9 of the Specific Relief Act was not maintainable, as
she could not sue for possession, the actual
possession having been with defendants 5 and 6 who
were the tenants of the house. In support of his
contention, he placed reliance on the cases of `SITA
RAM v. RAM LAL’, 18 All 440 and `VEERASWAMI v.
VENKATACHALA’, AIR 1926 Mad 18. It is sufficient
to state that the Allahabad case was not one under
Section 9 of the Specific Relief Act, and it is beside
the point in issue before us. The Madras case,
however, supports the contention. That case is a
single Judge case, and it appears that in the Madras
High Court there are conflicting decisions on the
point.
(7). Section 9 of the Specific Relief Act is as follows:-
“If any person is dispossessed without
his consent of immoveable property
otherwise than in due course of law, he
8
AIR 1952 Patna 339
9or any person claiming through him
may, by suit, recover possession
thereof, notwithstanding any other title
that may be set up in such suit”
(8). The contrary view was taken in the cases of
`JADU NATH SINGH v. BISHUNATH SINGH’, 1950
All LJ 288 & `RATANLAL GHELABHAI v.
AMARSINGH RUPSANG’, 53 Bom 773. I respectfully
agree with the view expressed in these cases. I am
of opinion that there is nothing to bar a landlord from
suing a trespasser under S. 9, Specific Relief Act, for
possession even when at the date of dispossession
the property is in occupation of a tenant entitled to
possession”.
14. In the case of Gobind Ram Jamna Dass v. Mst. Mewa
w/o Parbhati9
, the Division Bench of Pepsu High Court relied upon
the decision of Patna High Court in Sailesh Kumar8 and did not follow
decision of Madras High Court in Veeraswami Mudali1
. 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 S. 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
9
AIR 1953 Pepsu 188
10conclusion 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 S. 9 need not himself be in actual physical
possession of the property. A contrary view to this
will defeat the aims and objects of this enactment.
Supposing a landlord is incompetent to sue and his
tenant who is dispossessed refuses to institute a suit
under S. 9 of the Act, the landlord would be put in a
very awkward situation and would be forced to file a
regular suit. In such a case a wrong-doer will
naturally be placed in an advantageous position. To
accept this position it would be putting a premium on
a wrong act of trespasser. This position, in my
opinion, is not contemplated by the relevant
legislation. On the other hand S.9 provides for a
speedy and summary remedy to recover possession
taken away by unlawful means. The object of the
legislation, besides this, is to place the parties in their
original position. Trespasser, if he so likes, can bring
a regular suit to prove his title. A contrary
construction, in my opinion, would result in protracted
litigation for persons ousted from lawful possession by
unlawful means on the part of a trespasser”.
15. The Single Judge of Rajasthan High Court in Raghuvar
Dayal v. Hargovind and another10 was concerned with the question,
whether suit for possession under Section 9 of the 1877 Act can be
brought by a landlord even when the property is in possession of the
tenant. The Single Judge followed the afore-referred decisions of
10 AIR 1958 Rajasthan 287
11Bombay, Pepsu and Patna High Courts and reiterated the legal
position as follows:-
“(18). On a careful consideration of the wordings of S. 9
of the Act, I am of opinion that the ruling in which it has
been held that the suit for possession u/s 9 of the Act
can be brought by a landlord also even when the
property is in possession of the tenant have taken a
correct view of the provisions of S. 9. The words used
are “dispossessed” and “recover possession thereof”.
Section 9 is not confined only to those cases where the
plaintiff is in actual possession of the property in suit.
Whatever possession the plaintiff has at the date of
dispossession, he is entitled to claim in case of
dispossession. If a tenant is in possession of the
property and being dispossessed therefrom 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 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
12entitled to actual possession of the property in dispute
and the defendant Reghuvardayal who came into
possession of that property certainly interfered with the
possession of the plaintiff.
Shivchand tenant had no interest in the
possession of the property in dispute under the
circumstances of the case and the only persons
interested in possession thereof was the plaintiff. I
cannot therefore find any fault with the decree of the
lower Court awarding possession to the plaintiff”.
16. As noticed above, the views of the High Courts differ
about maintainability of suit for possession by the landlord under
Section 9 of 1877 Act in respect of property let out to the tenant who
has been dispossessed forcibly by a third party. That language of
Section 6(1) of the Act and first paragraph of Section 9 of 1877 Act is
exactly identical admits of no doubt. The key words in Section 6(1)
are “dispossessed” and “he or any person claiming through him”. A
person is said to have been dispossessed when he has been
deprived of his possession; such deprivation may be of actual
possession or legal possession. Possession in law follows right to
possession. The right to possession, though distinct from
possession, is treated as equivalent to possession itself for certain
purposes.
1317. In Halsbury’s Laws of England (Fourth Edition, page 617 -
para 1111), `physical and legal possession’ is distinguished as
under:
“ `Possession’ is a word of ambiguous meaning, and its
legal senses do not coincide with the popular sense. In
English law it may be treated not merely as a physical
condition protected by ownership, but as a right in itself.
The word “possession” may mean effective, physical or
manual control, or occupation, evidenced by some
outward act, sometimes called de facto possession or
detention as distinct from a legal right to possession…
…
`Possession’ may mean legal possession: that
possession which is recognized and protected as such
by law. The elements normally characteristic of legal
possession are an intention of possessing together with
that amount of occupation or control of the entire
subject matter of which it is practically capable and
which is sufficient for practical purposes to exclude
strangers from interfering. Thus, legal possession is
ordinarily associated with de facto possession; but
legal possession may exist without de facto possession,
and de facto possession is not always regarded as
possession in law. A person who, although having no
de facto possession, is deemed 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
14apart 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 case constructive
possession, the landlord also retains all his legal remedies. As a
matter of law, the dispossession of tenant by a third party is
dispossession of the landlord. The word “dispossessed” in Section
6(1) must be read in this context and not in light of the actual
possession alone. If a tenant is thrown out forcibly from the tenanted
premises by a trespasser, the landlord has implied right of entry in
order to recover possession (for himself and his tenant). Similarly,
the expression “any person claiming through him” would bring within
its fold the landlord as he continues in legal possession over the
15tenanted property through his tenant. As a matter of fact, on plain
reading of Section 6(1), it is clear that besides the person who has
been dispossessed, any person claiming through him can also file a
suit seeking recovery of possession. Obviously, a landlord who holds
the possession through his tenant is competent to maintain suit under
Section 6 and recover possession from a trespasser who has forcibly
dispossessed his tenant. A landlord when he lets out his property to
the tenant is not deprived of his possession in the property in law.
What is altered is mode in which the landlord held his possession in
the property inasmuch as the tenant comes into physical possession
while the landlord retains possession through his tenant. The view of
Calcutta High Court that where the tenant was forcibly ejected from
the land by the third party, it may reasonably be held that landlord
has also been dispossessed is the correct view. We find ourselves
in agreement with the view of Bombay, Patna, Pepsu and Rajasthan
High Courts and hold, as it must be, that there is nothing in Section 6
of the Act to bar a landlord from suing a trespasser in possession
even when, at the date of dispossession, the property is in actual
occupation of a tenant entitled to possession. The views expressed
by Madras High Court in Veeraswami Mudali1 and (Kanneganti)
16Ramamanemma5 and by Nagpur Judicial Commissioner in the case
of Ramchandra4 do not lay down the correct law.
20. Now we advert to the incidental question whether in such
a suit, tenant is a necessary party. Section 6 of the Act provides that
suit to recover possession under the said provision could be filed by
the person who is dispossessed or any person claiming through him.
The tenant having lost the possession though without his consent to a
third party, may not be interested in recovery of possession. He may
not be available. He may not like to involve himself in litigation. In
such circumstances, if a landlord brings the suit to recover
possession against trespasser under Section 6, it cannot be laid
down as an absolute proposition that tenant must necessarily be
impleaded as party to such suit. The view of Bombay High Court in
Ratanlal Ghelabhai7
that landlord can sue in his own name where
there is an injury to the reversion exposits the correct position of law.
It may be desirable that a landlord in a suit under Section 6 of the Act
against a trespasser for immediate possession when, at the date of
dispossession, the house was in occupation of a tenant, impleads the
tenant, but his non-impleadment is not fatal to the maintainability of
17such suit. The view of Madras High Court in (Kanneganti)
Ramamanemma5 and of other High Courts following that view do not
appear to us as laying down correct law.
21. In the result, appeal fails and is dismissed with no order
as to costs.
.………………….J.
[P. SATHASIVAM]
……………..J.
[R.M. LODHA]
NEW DELHI
FEBRUARY 22, 2010.
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