1. This revision has been referred to the Division Bench to decide the question as to whether a suit Under Section 6 of the Specific Relief Act at the instance of a co-owner who has been evicted from possession is maintainable.
2. The opp. parties as plaintiffs filed the suit out of which this revision arises praying for recovery of 'B' Schedule properties. The plaintiffs' case is that the deceased husband of plaintiff No. 1 Agadhu and defendants 1 and 2 (the present petitioners) were three brothers being sons of late Hari Naik. Plaintiff No. 2 is the daughter of plaintiff No. 1. The 'A' Schedule house is the ancestral house inherited by the three sons of late Hari Naik. It consisted of three rooms. Due to dissensions in the family each of the aforesaid three brothers lived in one room each in the 'A' Schedule house. The room in which the husband of plaintiff No. 1 was living has been described in Schedule 'B' of the plaint. After his death, his widow (plaintiff No. 1) and daughter (plaintiff No. 2) remained in possession of the said 'B' Schedule room. About four months prior to the filing of the suit defendants physically threw the plaintiffs out of the house and in that process the plaintiffs were dispossessed from 'B' Schedule properties. The plaintiffs at present have been living in the house of the sister of plaintiff No. 1 and filed the suit Under Section 6 of the Specific Relief Act (hereinafter called the 'Act').
3. The defendants filed the written statement denying the plaint allegations and challenged the maintainability of the suit. According to them, all the three brothers were living jointly and there was no partition or separate occupation of the rooms as alleged. They also denied the specific possession of the properties over 'B' Schedule room. The defendants further pleaded that plaintiff No. 1 has some illicit relationship with one Dhusa, son of one Balaram, who claimed plaintiff No. 1 as his concubine. Exception was taken to such relationship by the other members of the family and the plaintiff No. 1 being unwilling to end such illicit relationship left the ancestral house along with plaintiff No. 2 out of her own accord. According to them, they had never objected to plaintiff No. 1 to live with them jointly in the ancestral house. The learned trial Court after framing the issues which arise out of the pleadings and considering the evidence of the respective parties decreed the suit directing delivery of possession of the 'B' Schedule room to the plaintiffs.
4. No appeal being maintainable by virtue of the bar under Sub-section (3) of Section 6 of the Act, the present revision has been filed challenging the judgment and decree passed by the learned trial Court. When this case was placed before one of the Hon'ble Single Judge of this Court, question was raised that a suit Under Section 6 of the Act at the instance of one co-owner against another for recovery of possession is not maintainable by drawing an analogy from the decisions in similar situations Under Section 145, Cr PC. Since this raises an important question of law and no decision of this Court was available, the learned Single Judge referred the matter to be decided by a larger Bench. Thus, the only question that arises for consideration in this revision is as to whether a suit Under Section 6 of the Act for recovery of possession can be maintained by one co-owner against another/other co-owner/co-owners.
5. In this connection Sub-section (1) of Section 6 of the Act is necessary to be referred to which is quoted below for ready reference ;
"6. Suit by person dispossessed of immovable property :
-(1) 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 us in such suit."
The aforesaid provision in Section 6 of the Act provides a summary, useful and handy remedy to a person dispossessed of immovable property otherwise then in due course of law on the basis of his prior possession alone notwithstanding the question of title that may be set up in defence in such a suit. Such suit as required by Sub-section (2) must be filed within six months from the date of dispossession, The main question for determination in a suit under this Section is, therefore, whether the plaintiff while in physical possession of the immovable property has been dispossessed of the same forcibly by another without recourse to law and within six months prior to the institution of the suit. If these elements are found in favour of the plaintiff, he can be restored to possession under a decree to be passed in such suit which, of course, would not be a bar for any person to institute a suit to establish title to such property and to recover possession thereof. The section as it reads does not refer only to exclusive possession. There- fore, a person in joint possession of immovable property can be equated with a person who is in exclusive possession and each can as the Section reads pursue the remedy available Under Section 6 of the Act. This question has been a matter of controversy in various decisions of this country. The Calcutta High Court in AIR 1914 Cal. 496 (Hariram Das v. Sheikh Naju) took the view that the words "may by suit recovery possession thereof' refer to recovery of exclusive possession and not , joint possession, In a latter decision of the same-Court reported in AIR 1916 Cal. 562 (Ajiwan Bibi v. Sheik Heasut) the said view was explained and it was remarked that the words "exclusive possession" mentioned in the judgment of the earlier Court must be read with reference to the facts of that case. The latter view of the Madras High Court was followed in AIR 1940 Allahabad 261 (Ballav Das v. Gour Das). Another decision reported in AIR 1922 Nagpur 115 (Ramachandra Fate v. Shridhar and Ors.) was also brought to our notice which, however, deals with the question in a different context, In the said case his Lordship observed that section 9 of the old act which is equivalent to section 6 of the present act includes the case of a co-owner of property seeking to be restored to posssession jointly with a trespasser of property from which the latter has ousted his co-owners along with him, even though those other co-owners do not claim possession of their shares. The aforesaid view of Calcutta High Court and the Allahabad High Court was not accepted by the High Court of Jammu and Kashmir in the decision reported in AIR 1975 J & K 47 ; (Munshi v. Mangoo). In the said case it was held that the purpose of Section 9 to restore a dispossessed plaintiff to the possession which obtained before the date of his dispossession cannot be served by a decree for joint possession. According to the said decision, even after execution of such a decree under Order 21, Rule 35(2), CPC a suit for partition is an indispensable remedy for the decree-holder and the question of title has again to be gone into as it could not be deemed to have been settled in the suit Under section 9 of the old act. The analysis was that the legislature could never be presumed to have intended to enact a provision a resort to which would lead a person nowhere. Such an absurdity, according to the view take in that dicision has, therefore, to be avoided by placing an interpretation on Sec.9 which would further, rather than negative the purpose of Section. A decree for joint possession could not, therefore, fall within the purview of Section 9. This decision practically confirms the view taken by the Calcutta High Court in the earlier case, namely, AIR 1914 Calcutta 496 (supra). This High Court in the decision reported in 40(1974) CLT 1283 (Khetri Pradhan and Ors. v. Jagannath Pradhan and Ors.) which arose out of a dispute Under Section 145, Cr PC held that where the dispute is with regard to the property in the joint possession of parties, a proceeding cannot be initiated Under Section 145, Cr PC, the reason being, unless there is a partition, any members of the family who is in separate possession of any part of the joint family properties can only be in possession on behalf of other family member. No member of the joint family can claim any part of the join family property exclusively for himself, because every member of the joint family has a right in the property, though some portion thereof may be in possessin of one of the members of the joint family. In our opinion, this decision arising out of a proceeding Under Section 145, Cr PC would offer no guideline for interpretation of Section 9 of the Act.
6. The concluding words of Section 6(1) of the Act offer some clue for the correct interpretation of the Section. The Court is required to restore possession to the person who has been dispossessed without his consent otherwise than in due course of law notwithstanding any other title that may be set up in such suit. Thus when the defendant had title pursuant to which he was entitled to possess the property is not a defence in the suit Under Section 6 of the Act if he has dispossessed a person in possession without his consent and otherwise than in due course of law. This would mean that if one co-sharer is in possession of any immovable property exclusively, the other co-sharer cannot forcibly throw him out without taking recourse to due procedure of law, and compel him to file a regular suit to establish his title and thereafter recover possession from them. As already stated, Section 6 affords a speedy and effective remedy to restore the status quo ante which existed before the dispossession of the plaintiff. though in law possession of each co-sharer of a joint property or joint family property amounts to possession of all, those who are not in actual physical possession cannot by their high-handed action drive a co-sharer away and dispossess him. We are unable to accept the analysis made in the decision reported in AIR 1975 J & K 47 (supra), for the reason that a decree Under Section 6 of the Act would not be a decree for joint possession. Rather it would be a decree to put the plaintiff in possession of the property which he physically possessed immediately before he is dispossessed.
7. We are, therefore, of the view that if a co-sharer is in exclusive possession of any item of property, he can bring a suit Under Section 6 of the Act for restoration of possession if he is dispossessed without his consent otherwise than in due course of law even by his co-sharer.
We answer the reference accordingly.
S.K. Mohanty, J.
I agree.