S.S. Sandhawalia, C.J.

1. Whether the dispossession envisaged in Section 6 of the Specific Relief Act, 1963, includes within its sweep the flagrant and contumacious violation of symbolical possession of immovable property duly delivered in the course of law -- has come to be the spinal issue in this civil revision.

2. The facts herein call for a somewhat brief notice and indeed highlight how the vagaries of law can lead to grave delays and thus virtual injustice for a suitor seeking relief through its processes. The petitioners herein are members of a joint Hindu Mitakshara family of which Kumar Kalyan Prasad (petitioner No. 1) is the Karta and manager and the suit under Section 6 of the Specific Relief Act (hereinafter referred to as "the Act") for the recovery of possession of the suit property had been filed in a representative capacity. It is unnecessary to recount the somewhat tangled facts and it suffices to mention that way back in the year 1956 the petitioners had filed Title Suit No. 130 seeking eviction of the opposite party and securing the possession of the suit property. Though the suit was dismissed by the Munsif, 1st Court, Darbhanga, and the lower appellate Court upheld the dismissal, the High Court in Second Appeal No. 125 of 1%1, decided on the 5th April, 1963, decreed the suit in favour of the petitioners for recovery of possession with regard to the suit land by ejecting the defendants as also for recovery of arrears of rental. The decree of the High Court was duly executed in Execution Case No. 113 of 1963 actual possession was secured on the 10th Nov. 1965.

3. It is the petitioners' case that having got delivery of possession they locked the house and deputed two of the servants to keep a watch over the same. However, on the very night of the 10th Nov. 1965, the opposite party with the help of other associates forcibly entered the house and took possession of the same by ousting the plaintiffs1 servants and also assaulted them. A criminal case was then filed by Jageshwar Bhandari, one of the petitioner's servants, under Sections 147, 448, 452, and 323 of the Penal Code in which the accused persons were convicted and sentenced by the trial Court. The conviction had been maintained up to the highest level by the High Court. The opposite party, however, clung to the property and despite repeated demands refused to give up their illegal possession and indeed started erecting new structures over the suit property and putting down the old ones. The petitioners then instituted the suit under Section 6 of the Act giving rise to the present revision.

4. The suit was contested by the defendants on a variety of grounds and on the pleadings of the parties as many as eight issues were framed of which the material ones are issue Nos. 5 and 6 in the terms following : "5. Is the delivery of possession given by Nazir to the plaintiffs over the disputed land a mere paper transaction?

6. Are the plaintiffs dispossessed of the disputed land as alleged?"

5. In a prolonged trial, which seems to have extended to the inordinate length of 15 years, the Additional Munsif, Darbhanga, came to the categoric conclusion that the plaintiff-petitioners had acquired clear title over 2 kathas and 19 dhurs of land which was the suit property but held that in the execution -proceedings the Nazir had only delivered symbolical possession of the property and the recording of the delivery of actual physical possession was not established. Taking a narrowly constricted view of the matter that the plaintiff-petitioners were not given physical delivery of possession over the suit land, he held that the question of their actual dispossession therefrom could not arise and, therefore, they had no cause of action under Section 6 of the Act to file the suit. Consequently the same was dismissed and the petitioners pointedly assailed this finding in the present civil revision.

6. Though the finding of the Court below that the actual recording of delivery of possession of the suit property by the Nazir was a paper transaction was seriously and forcefully assailed before us as resting on no evidence whatsoever, yet in this revision application it is wholly unnecessary to go behind that finding or to enter the thicket of facts. I intend, therefore, to proceed on the firm finding arrived at by the trial Court itself that symbolical possession of the suit land had been duly delivered to the plaintiff-petitioners in the execution proceedings by the Nazir in accordance with law. This finding in categoric terms is as under : "....I find that actually Nazir visited the spot but he was not allowed to deliver possession so he submitted a report showing actual physical possession but in fact no such delivery was done rather the same was a symbolical delivery of possession."

7. Now on the aforesaid finding the legal issue that now squarely arises is whether a flagrant and contumacious dislodging of symbolical possession duly delivered in accordance with law would come within the ambit of dispossession envisaged under Section 6 of the Act and entitled the aggrieved party to maintain the suit.

8. The learned counsel for the parties took the stand that on the direct and narrow question aforesaid the matter seems to be res integra and no precedent covering the issue on all fours could be cited. Judgments were referred to only by way of analogy. That being so, it is first necessary to examine the matter on principle and on the language of the statute. The relevant part of Section 6 of the Act is in the following terms : "6( 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 up in such suit. (2) to (4).............................................."

9. In the first instance, a mere reference to the plain language of the provision aforesaid would indicate that the word "dispossessed" has not been used in the narrowly constricted sense of the actual physical possession of Immovable property.. Indeed, it talks (sic) widely of dispossession of Immovable property otherwise than in due course of law without the person's consent. If the Legislature intended to narrowly limit the word "dispossessed" there could have been no difficulty by specifying in terms the actuality of physical possession as its necessary and vital ingredient. The word employed is the ordinary word 'dispossess'. Plainly enough it would include within its sweep actual physical dispossession also but this is no warrant for holding that it necessarily excludes the violation of other forms of possession including a symbolical possession duly delivered by law and contumaciously violated by an aggressive trespasser. On principle I am not inclined to construe the word "dispossessed" in Section 6 in any hypertechnical sense and to push it into the procrustean bed of actual physical possession only. Indeed the intent of the Legislature in Section 6 to provide early and expeditious relief against the violation of possessor right, irrespective of title, would be equally, if not more, relevant where symbolical possession delivered by due process of law is sought to be set at naught forthwith. On a larger and liberal construction, therefore, it seems wholly unnecessary to limit or constrict the ordinary and plain meaning of the word "dispossessed", which is obviously wide enough to include both actual physical possession and equally a symbolical possession of Immovable property which is well recognised in the eye of law. The view that I am inclined to take would receive massive support from the observations in the Full Bench judgment in Jayagopal Mundra v. Gulab Chand Agarwalla . Therein after a close analysis of Rules 35 and 36 of Order 21 of the Civil P.C. and relying on Juggobundhu Mukherjee v. Ram Chunder Bysack ILR (1880) Cal 584 which was affirmed in Sri Radha Krishan Chanderjee v. Ram Bahadur AIR 1917 PC 197, and equally on a string of the judgment of this Court beginning with Maharaja Pratap Udai Nath Sahi Deo v. Sunderbans Koer AIR 1923 Pat 76 it has been concluded as under : "Thus, the legal position is well settled that symbolical delivery of possession against the judgment-debtor where even actual possession could have been delivered amounts to actual delivery of possession." Equally reference may also instructively be made to Ramamanemma v. Basavayya AIR 1934 Mad 558, whilst keeping in mind that the provisions of Section 6 of the Specific Relief Act are virtually in pari materia with the old Section 9 of the repealed Act of 1877. It was observed in the aforesaid case that if the remedy is clear under the Specific Relief Act the parties should not be driven to the onerous remedy of another suit. By way of analogy in Manikayala Rao v. Narasimhaswami AIR 1966 SC 470 it was observed in para 12 that the delivery of symbolical possession under Order 21, Rule 35(2) would amount to an interruption of the respondent's adverse possession. It seems to follow from the aforesaid precedents that the weight of authority seems to be a pointer to the view that symbolical possession is in no way out of the ambit of dispossession envisaged and sought to be remedied by Section 6 of the Act.

10. In fairness to Mr. S.C. Ghose, reference must be made to a passing observation in Sona Mia v. Prokash Chandra, AIR 1940 Cal 464. This case is, however, plainly distinguishable. Therein the plaintiff had continued to be in physical possession of the land and the grievance raised was that the defendants had allegedly dispossessed them only by realising tolls from shop-keepers on the martket days of Mondays and Fridays. It was on those peculiar facts that it was observed that Section 9 of the Specific Relief Act of 1877 comes into operation only if the defendants have deprived the plaintiffs of actual physical possession. A close reading of the judgment would show that the issue before us, namely, whether symbolical possession comes within the sweep of Section 6 of the Act, did not even remotely arise for consideration. Consequently it was neither debated upon nor adjudicated by the Bench. However, if the solitary observation therein is sought to be construed as a warrant for the proposition that symbolical possession would be excluded from the scope of Section 6, I would respectfully wish to record a dissent therefrom Mr. Ghose had also referred to Hindustan Aeronautics v. Ajit Prasad, AIR 1973 SC 76 but the general observation therein with regard to the scope of interference under Section 115 of the Civil P.C. would in no way aid or advance the case of the respondents.

11. To conclude, the answer to the question posed at the outset is rendered in the affirmative and it is held that the word "dispossessed" in Section 6 of the Act will equally include within its sweep any flagrant and contumacious violation of symbolical possession duly delivered in the course of law.

12. Once it is held as above, it is plain that the petitioners herein must succeed. The trial Court had non-suited them primarily on the ground that they had no cause of action to file the suit under Section 6 of the Act. This was on the ground that they had secured only symbolical possession of the property in dispute and not actual physical delivery thereof from the Nazir. Even on that finding, the petitioners would be entitled to maintain the suit and the finding on Issue No. 2, therefore, must be reversed to hold that the plaintiffs had a right and sound cause of action against the defendants.

13. The civil revision application is, therefore, allowed and the plaintiff-petitioners' suit under Section of the Act is hereby decreed with all consequential reliefs. The petitioners shall also have their costs. B.P. Jha, J. I agree.