1. This is an application to revise a decree passed by the Sub-Judge, Basim, under Section 9 of the Specific Relief Act, directing the defendants to put the plaintiff in possession of a house in the town of Basim, and ordering that the plaintiff's costs should be paid by the defendants. The facts of the case may be stated thus. The plaintiff has been in possession of the house as a mortgagee under a possessory mortgage dated 26-8-11, executed by one Mahatapkhan, and his sons. Defendants are said to have dispossessed the plaintiff in the month of May 1924. The suit was filed on 6-8-24.
2. The defence was that the defendants had been in possession of the house for the last 15 years with the permission of one Nasirbee the daughter of Aslamkhan to whom the house belonged.
3. The defendants were allowed to live free of rent they keeping the house in good repair. Subsequently the defendants purchased the house from Nasirbee on 6-3-24 by a registered deed of sale. Defendants contended that the suit is not maintainable as the plaintiff was not in the possession of the house within 6 months from the date of the suit.
4. The case was tried on the following issues:
1. Was the plaintiff in possession of the house in suit within 6 months from the date of this suit as a mortgagee in possession under the mortgage bond, dated 26-8-11 as alleged by him?
2. To what relief is the plaintiff entitled?
5. The Court found that the plaintiff was in possession as a mortgagee through the mortgagor to whom he had leased the house under a bhada chitthi, dated 28-6-11; that the plaintiff's evidence shows that he was in possession till the month of May last year, and that the defendants had failed to establish their prior possession.
6. The contentions raised on behalf of the applicants-defendants in this Court are twofold. The first is that under the circumstances it was incumbent on the plaintiff's tenants to bring the suit, and that the plaintiff could not bring it himself. Secondly, that the evidence in the case does not show that the tenants were ejected from possession within 6 months, of the filing of the suit.
7. As regards the first point: reliance is placed on Dinkarsha v. Anantsha [1908] 16 C.P.L.R 154 where the Judicial Commissioner of these Provinces laid down that where a tenant has been ejected by a third party, the landlord is not competent to bring a suit for possession under Section 9 of the Specific Relief Act. A perusal of the judgment shows that the question of law involved therein was doubtful, and that the learned Judge on the facts of that particular case held that the suit was not maintainable by the landlord. In Sonaton Shome v. Sheikh Helim [1902] 6 C.W.N 616 it was laid down that where the plaintiff was in constructive possession of a plot of land through his tenant, and the latter was dispossessed, the plaintiff had no right to bring a suit under Section 9 of the Specific Relief Act.
8. On the other hand there is authority to the contrary. In Bindubashini Chaudhurani v. Shrimati Jdhnavi Chawdhurani [1909] 13 C.W.N 303 it was held that in the case the ouster of a tenant in actual occupation of the land amounted to the ouster of the immediate landlord to whom rent was to be paid, and that Section 9 of the Specific Relief Act is not confined in its application to cases in which the plaintiff has been deprived of actual possession. A similar view was held in Nobin Das v. Kailash Chandra Dey [1910] 15 C.W.N 294 , 12 C.L.J 483, a case of a usufructuary mortgage in favour of the plaintiff and in Akhil Chandra Dey v. Akhil Chandra Biswas [1910] 15 C.W.N 715 it was decided that the ouster of a tenant is an ouster of the landlord for which the landlord can sue under Section 9 of the Specific Relief Act. The same view was maintained in Rathnasabapathi Pillai v. Ramasami Aiyar [1910] 33 Mad. 452 , (1910) M.W.N 112 , 20 M.L.J 301 in which the case of Jagannatha Charry () v. Rama Rayer (Petitioner) . [1905] 28 Mad. 238 was followed. The Oudh Judicial Commissioner held the same view in Nihal Singh v. Raghuraj Bahadur Singh [1916] 18 O.C 353 , 3 O.L.J 588. In my opinion a mortgagee in possession through tenants is entitled to invoke the aid of Section 9 of the Specific Relief Act on his tenants being ejected from possession by others.
9. As to the second point in the case: it is contended for the applicant that the evidence does not show that the plaintiff's tenants were ousted within 6 months of the filing of the suit. The date of ejectment as given in the plaint is May 1894. The plaintiff, examined as a witness, states that he does not remember the exact month in which the ouster took place. P.W 3, speaking on the 6th June last states that the tenants were ejected at the end of the rainy season, two months before Diwali, i.e, in August. P.W 5 states that the tenants were ejected in July 1924. I doubt if this Court should interfere in revision on a question of this nature even if wrong. The Subordinate Judge had jurisdiction to try the case, and if he has made a mistake there is a remedy open to the applicants by a regular suit. It was held in Amir Hassan Khan v. Sheo Baksh [1885] 11 Cal. 6 , 11 I.A 237 , 4 Sar. 559 (P.C) by their Lordships of the Privy Council that a Court that has decided a suit over which it had jurisdiction cannot, only on the ground that it has arrived at a wrong decision, be said to have exercised its jurisdiction illegally or with material irregularity. It cannot be said that there is no evidence to warrant the decision the lower Court has come to as to the time of dispossession.
10. There is, moreover, another principle on which I consider that this Court should decline to interfere. It is not the practice of this Court, and the practice of the Court is the law of the Court, to interfere in revision where another remedy is open to the aggrieved party and where no great injustice or inconvenience would follow from the refusal to act: see Ram Kishan Das v. Jai Kishan Das [1911] 33 All. 647 , 8 A.L.J 791, Chidambaram v. Nagappa [1915] 38 Mad. 15 , 24 M.L.J 73 and Kashinath v. Nana [1897] 21 Bom. 731. Sir Stanley Ismay applied this principle in Balram Misar v. Bairagi Mali [1904] 12 C.P.L.R 52, a case in which a suit under Section 9 of the Specific Relief Act had been wrongly dismissed. I must, therefore, decline to find in the applicant's favour on the second contention urged in this application.
11. The result is that this rule is discharged with costs. The applicants will pay the non-applicant's costs. I fix pleader's fees at Rs. 15.
12. Rule discharged.