Ramchandra v. Sambashiv

Hallifax, A.J.C:— The question referred to this Court under Section 113 of the CPC, is which of two officially published judgments of this Court, each the judgment of a single Judge, is correct. This is one of the not inconsiderable number of cases in which a judgment of a single Judge of this Court has been officially published, presumably through inadvertence, though it breaks the rule of practice that a single Judge is bound to follow all officially published rulings till they have been overruled by a Bench. The inconvenience caused by the mistake is apparent. The learned Subordinate Judge who made the reference states the opinion that the two conflicting judgments are “of equally binding authority.” That would mean that neither is of any authority at all, its effect being cancelled by the other, and indeed it is hard to say that is not the actual position. The only means of escape from such an impossible position is to refer the question to a Bench, which will overrule one decision or the other.

2. The facts of the present case, including those not yet proved but assumed to be true for the purposes of the decision, are these. The original plaintiff Balaji Rangari (who has since died and been succeeded as plaintiff by his son Ramchandra) was the owner of a house, used as a shop, and of a plot of land adjoining it in the town of Chanda, which for some years he has been letting out on oral leases from year to year to one Uttamchand Marwari. The term of the last lease given before the present suit was instituted was from 29th October 1924 to 18th October 1925. On 26th February 1925 the defendant Sambashiv Komti dispossessed the tenant Uttamchand of the open plot, but not of the house, and on 3rd August of the same year the landlord Balaji filed the present suit, claiming to be restored to possession under Section 9 of the Specific Relief Act. On 7th September 1925 the defendant put in a written statement alleging facts relating to the merits of the case, and also pleading that the plaintiff was not entitled to possession of the land, on his own showing, and therefore could not maintain this suit under Section 9 of the Specific Relief Act. It appears that the tenant Uttamchand is quite willing to be joined in the suit as a plaintiff with his landlord, but the question was not raised till twelve days after the expiry of six months from the dispossession.

3. But for the decisions that have been mentioned, there would seem to me to be no question to decide in the case. We have to do nothing more than apply the plain words of Section 9 of the Specific Relief Act. That section lays down that any person dispossessed of immovable property may recover possession thereof. A right to receive rent is immovable property, and a person dispossessed of that right can recover possession of that right, but he cannot recover possession of the laud, of which he was not in possession and has not been dispossessed. It was Uttamchand who was dispossessed of the land here not the plaintiff, and Uttamchand alone could regain possession of it. The plaintiff was apparently not dispossessed even of his right to recover the rent from Uttamchand, anyhow not by the defendant, and that is the only immovable property of which he can claim possession.

4. It is, however, necessary to discuss the rulings that have been mentioned in this connexion. Balaram Misar v. Bairagi Mali [1898] 12 C.P.L.R 52, decided by Ismay, J.C, in 1898 is not exactly in point, but contains a clear definition of what is undoubtedly meant by possession in the section under consideration, except that for the word land, which was sufficient for the purposes of that case, we must, to make the definition more generally applicable, substitute the words immovable property which appear in the section itself. The meaning of the word “possession” in that section then is a physical detention or occupation of immovable property. In Dinkarsha Bapu v. Anantsha Bapu [1903] 16 C.P.L.R 154, decided in 1903, Drake-Brockman, J.C, held very distinctly that where a tenant has been ejected by a person other than his landlord, the landlord cannot sue under the Specific Relief Act for actual possession of the land.

5. The fact that the contrary view was taken by Prideaux, A.J.C, in Samsherkhan v. Abdul Sattar Khan A.I.R 1926 Nag. 290 , 22 N.L.R 30, has led to the present reference. My learned brother mentioned the judgment in Dinkarsha Bapu v. Anantsha Bapu [1903] 16 C.P.L.R 154, and also that in Sonaton Shome v. Sheikh Helim [1902] 6 C.W.N 616, decided by the Calcutta High Court in 1902, which is to the same effect. He considered, however, that the authority of these two cases was outweighed by that to the contrary in three cases of the Calcutta High Court, two of the Madras High Court and one of the Court of the Judicial Commissioner of Oudh; the judgment contains no discussion of the question itself.

6. None of the three Calcutta cases has been officially published. The first of them is Bindubashini Chaudhurani v. Jahnavi Chaudhurani [1909] 13 C.W.N 303 , 1 I.C 150, which was decided in 1897 but was not published, even unofficially, till 1902. The learned Judge's reason for holding that a suit by a landlord not himself entitled to possession was not outside the purview of S. 9 was that they had not been referred to any case in which this narrow construction of the section had been adopted. The case of Sonaton Shome v. Sheikh Helim [1902] 6 C.W.N 616 which takes the contrary view, was decided in 1902, and also appears in the same unofficial publication.

7. In Akhil Chandra Dey v. Akhil Chandra Biswas [1911] 15 C.W.N 715 , 10 I.C 455, decided in April 1910, the Calcutta High Court indicated a leaning to the opinion that the ruling in Sonaton Shome v. Sheikh Helim [1902] 6 C.W.N 616 was wrong, because it had never been followed and there were five rulings to the contrary effect, but refused to decide the point, as it was not necessary for the decision of the case. Nobin Das v. Kailash Chandra Dey [1911] 15 C.W.N 294 , 7 I.C 924 , 12 C.L.J 483, was also decided in 1910, but some months later. The decision rests on “a review of the authorities,” but mainly on the fact that the tenancy had been surrendered to the landlord before the suit was filed, that is to say, that he was entitled to the possession he sought.

8. In the first of the two Madras cases mentioned Jagannatha Charry () v. Rama Rayer (Petitioner) . [1904] 28 Mad. 238, decided in 1904, the tenant's interest had terminated before the suit was filed. On this decision, as on that in the last Calcutta case mentioned, it may be remarked that though the landlord became entitled to possession of the land itself on the termination of the tenant's interest, he could not be said to have been dispossessed of it, as he had never had possession since the beginning of the tenant's interest. The learned Judges of the Madras High Court also based their decision on an unreported case of their own Court, in which it was held that the right to collect rent was immovable property, and that an action could be brought under Section 9 of the Specific Relief Act, for the dispossession of that right.

9. That hardly supports the view that he could sue for possession of another right of which he had not been dispossessed.

10. The view that this judgment and the unreported case mentioned in it do support was taken in 1910 by the same High Court in Rathnasabapathi Pillai v. Ramasami Aiyar [1910] 33 Mad. 452 , 20 M.L.J 301 , 5 I.C 630 , (1910) M.W.N 112. In that case the plaintiff said he was the landlord of certain lands and claimed a declaration of his right to possession through tenants and an injunction restraining the defendants from obstructing that right. It was objected that he could not get these reliefs without suing for possession “of the landlord's right to receive rents,” and he pleaded he could not get possession because the tenants held it. It was held that he was entitled (and therefore bound) to sue for possession of the right he claimed, the right to receive rents, and it was incidentally mentioned that he could sue for possession of that right even under Section 9 of the Specific Relief Act. That again is not saying that he could sue for actual possession of the land, which he was not holding, and therefore had not lost and was not entitled to hold.

11. The judgment of the Judicial Commissioners of Oudh in 1915 in Nihal Singh v. Raghuraj Bahadur Singh [1916] 18 O.C 353 , 32 I.C 202 , 3 O.L.J 588, is printed in another private publication. The only question that arose in that case was whether the right to collect rents, of which the plaintiffs said they had been dispossessed, was immovable property of the sort mentioned in S. 9 or not, and the learned Judges decided that it was. Thereafter they expressed their opinions on several more or less cognate questions of law, and finally found that the plaintiffs had never been dispossessed of their right to collect rents at all, so that even the question of the nature of that right did not arise.

12. It appears then that of the six cases mentioned as supporting the proposition that a person is entitled to sue for possession of land which he is not entitled to possess, having transferred that right to another, one only supports it fully. That is the earliest of the Calcutta cases, Bindubashini Chaudhurani v. Jahnavi Chaudhurani [1909] 13 C.W.N 303 , 1 I.C 150, and the reason for taking that view is that the contrary view had apparently never been taken. In one other case, Nihal Singh v. Raghuraj Bahadur Singh [1916] 18 O.C 353 , 32 I.C 202 , 3 O.L.J 588, the learned Judges expressed an opinion that view was correct, but the question was not before them for decision. In the second Calcutta case mentioned, an expression of opinion on the point would have been an obiter dictum if it had been expressed, but it was not. In the third Calcutta case as in the first of the two Madras cases, the plaintiff was entitled to the possession he claimed, that is actual possession of the land, before he filed his suit, and in both the Madras cases all that is laid down is that the right to collect rents is immovable property within the meaning of Section 9 of the Specific Relief Act.

13. If then the question is to be decided on “authority,” that is to say on the mere fact of its having been decided previously one way or the other, without any examination of the reasons given for those decisions, the position is this. In support of the view accepted by my learned brother in Samsherkhan v. Abdul Sattar Khan A.I.R 1926 Nag. 290 , 22 N.L.R 30, there is one judgment of the Calcutta High Court given in 1897 and obiter dicta in another judgment of the same Court and in a judgment of the Oudh Court, none of which has been officially published, that is to say, accepted by the whole Court as correct. Against that view there are two officially published judgments of the Madras High. Court of which one is perhaps neither for or against it, and the two officially reported decisions of this Court already mentioned.

14. The matter does not, however, appear to me open to any argument, as a statement of it in the words of the section itself, with only such explanatory interpolations as are open to no question, must necessarily be the correct view. That statement is as follows:

If any person is dispossessed without his consent of immovable property (including the right to recover rent) otherwise than in due course of law, he or any person claiming (possession of that property) through him may by suit recover possession thereof, notwithstanding any other title (to that property) that may be set up in that suit.

15. In this case therefore Ramachandra cannot sue under Section 9 of the Specific Relief Act to recover actual possession of the land, because he was not in possession of it and was not dispossessed of it; he could sue for possession of the right to recover rent from Uttamchand if he had been dispossessed of it but he has not. The question of law to be referred to a Bench, to which the question of the correctness of the decision in Samsherkhan v. Abdul Sattar Khan A.I.R 1926 Nag. 290 , 22 N.L.R 30, is subsidiary, is whether the plaintiff is entitled to maintain the present suit or not in the circumstances set out at the beginning of this judgment.

Hallifax and Kotval, A.J.C's.:— We have nothing to add to what is said in the order of reference made by one of us, with which we agree, except on one minor matter. It is suggested in para. 9 of that order that the fact of the tenancy having been surrendered would not give the landlord the right to sue under Section 9 of the Specific Relief Act, as was held in Jagannatha Charry () v. Rama Rayer (Petitioner) . [1904] 28 Mad. 238, and Nobin Das v. Kailash Chandra Dey [1911] 15 C.W.N 294 , 7 I.C 924 , 12 C.L.J 483, because the landlord could not be said to have been dispossessed; he was merely excluded from possession on the termination of the tenant's interest. It would seem, however, that under those circumstances the landlord would be a person claiming possession of the land through the person who was actually dispossessed. We are of opinion that the plaintiff Ramachandra is not entitled to maintain the present suit.

A.L/R.K

16. Reference answered.