The Judgment of the Court was as follows:—
These two Rules have been heard together.
The facts, so far as Rule 1929 is concerned, briefly are as follows: The Plaintiffs Opposite Parties were the ijargdars of the property in suit. They possessed the property in the following manner. On one portion of the property the Plaintiffs had a hut of which they were in actual occupation. Another portion of the property was settled with one Krishna Chandra Banik at a salami of Rs. 200. The remaining portion of the land was used by the Plaintiffs as a Hat. Persons came there on Mondays and Fridays and sold articles and the Plaintiffs realised tolls from them. It is alleged by the Plaintiffs that the Defendants had dispossessed them by realising tolls from the shop-keepers on the market days. On these allegations the Plaintiffs brought Suit No. 209/38 under sec. 9 of the Specific Relief Act. The learned Munsif has given the Plaintiffs a decree and the Defendants have moved this Court.
The point argued by the learned Advocate for the Defendant Petitioners is that there has been no actual dispossession of the Plaintiffs and that, therefore, sec. 9 of the Specific Relief Act has no application. In support of this argument I have been referred to the cases of Tarini Mohan Majumdar v. Ganga Prosad Chuckerbutty , Sonatan Shome v. Sheikh Helim and Nabin Chunder Das v. Koylas Chandra Dey . The learned Advocate argues that sec. 9 of the said Act contemplates that the Plaintiffs have been deprived of actual physical possession of the land by the Defendants. In support of this contention, he refers me also to sec. 5(a) of the Specific Relief Act which says
“Specific relief is given by taking possession of certain property and delivering it to a claimant.”
His argument is that if the Plaintiffs are in actual physical possession, then this relief of taking possession of the property and delivering it to them becomes unnecessary. He says that the only relief that can be granted under sec. 9 of the Specific Relief Act is the relief mentioned in sec. 5(a) of that Act. I am inclined to accept this view. sec. 9 of the Specific Relief Act comes into operation only for a limited purpose. It cannot be invoked unless the defendants have deprived the plaintiffs of actual physical possession. This section has nothing to do with questions of title. It is intended for the purpose of maintaining the possession of persons who are in actual physical possession of land and for discouraging persons from attempting to take physical possession of land from another by force.
In the present case, on the statements in the plaint itself it is quite clear that the Plaintiffs are still in physical possession of the land and Dr. Pal on behalf of the Plaintiffs says that this is so. What is alleged is that the Defendants have induced the stall-keepers to pay them the rent instead of paying it to the Plaintiffs. This may amount to dispossession of the Plaintiffs, if the word “dispossession” is used in a wide sense; but it does not amount to depriving the Plaintiffs of the actual physical possession of the land. They are still in such possession and they can avail themselves of such ways and means as are allowed by law to protect such possession against any inroads that may be made by the Defendants. They cannot, however, invoke the aid of sec. 9 of the Specific Relief Act, inasmuch as the only relief that can be granted under that section is the restoration of physical possession. As they have not lost that possession, there can be no question of restoration. The decree passed by the Court below in Suit No. 209/38 is set aside. The Defendant will get the costs of the suit.
The Rule is made absolute. The Defendants are entitled to the costs of this Rule. Hearing-fee, one gold mohur.
Next, I take up for consideration Rule 1930 of 1939 which arises out of Case No. 7 of 1939. This Rule relates to the dispossession of Krishna Chandra Banik from the land which was settled with him at a royalty of Rs. 200 as mentioned above by the Defendants erecting a hut on the land.
So far as this Rule is concerned, there can be no doubt that Krishna Chandra Banik was in actual possession of the land and that he was deprived of this possession by the Defendants forcibly taking possession of the land and erecting a hut thereon. There can be no doubt that the Plaintiffs in this case are entitled to relief under sec. 9 of the Specific Relief Act. The learned Munsif has directed that the Plaintiffs should be put in possession of the land, but in doing so, he has also passed an order directing the Defendants to remove the hut which they had erected on the land by a certain date and stating that if they did not do so, the Plaintiffs would be entitled to remove the structures. It is against the latter part of the learned Munsif's order that the Petitioners have come before this Court. They contend that sec. 9 does, not contemplate such an order. Here, again, I am in agreement with the contention urged on behalf of the Petitioners. All that the Court can do under sec. 9 of the Specific Relief Act is to restore the Plaintiffs to physical possession. It cannot direct the Defendants to remove any Structures which they have erected on the land or permit the Plaintiffs to pull down the structures. In a suit under sec. 9 of the Act the question of the title of the respective parties is not adjudicated upon, and, therefore, it would be wrong to pass any order regarding the structures on the land.
The order of the learned Munsif ejecting the Defendants from the land is maintained, but the order regarding, the structures erected on the land by the Defendants is set aside. The Plaintiffs are entitled to their costs in the Court below, inasmuch as they have succeeded substantially in the suit. This Rule is made absolute with costs. Hearing-fee, one gold mohur.
P.C